AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC. et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 134

MOTION for Summary Judgment , MOTION for Permanent Injunction by AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC., AMERICAN PSYCHOLOGICAL ASSOCIATION, INC., NATIONAL COUNCIL ON MEASUREMENT IN EDUCATION, INC. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration Hutter Decl., # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Declaration Hudis Decl., # 9 Exhibit A, # 10 Exhibit B, # 11 Exhibit C, # 12 Exhibit T, # 13 Exhibit U, # 14 Exhibit Z, # 15 Exhibit BB, # 16 Exhibit CC, # 17 Exhibit EE, # 18 Exhibit GG, # 19 Exhibit HH, # 20 Exhibit II, # 21 Exhibit JJ, # 22 Exhibit KK, # 23 Exhibit LL, # 24 Exhibit MM, # 25 Declaration Ernesto Decl., # 26 Exhibit NN, # 27 Exhibit OO, # 28 Exhibit PP, # 29 Exhibit QQ, # 30 Exhibit RR, # 31 Exhibit SS, # 32 Exhibit TT, # 33 Exhibit UU, # 34 Declaration Wise Decl., # 35 Exhibit KKK, # 36 Exhibit LLL, # 37 Declaration Camara Decl., # 38 Exhibit MMM, # 39 Declaration Levine Decl., # 40 Exhibit NNN, # 41 Exhibit PPP, # 42 Exhibit QQQ, # 43 Exhibit UUU, # 44 Declaration Geisinger Decl., # 45 Declaration Schneider Decl., # 46 Exhibit Levine Depo Tr., # 47 Exhibit No. 1207 to Levine Depo Tr., # 48 Exhibit No. 1308 to Levine Depo Tr., # 49 No. 1308 to Levine Depo Tr., # 50 Text of Proposed Order)(Elgarten, Clifton)

Case 1:14-cv-00857-TSC Document 60-30 Filed 12/21/15 Page 1 of 386

EXHIBIT Z
Case No. 1:14-cv-00857-TSC-DAR

Case 1:14-cv-00857-TSC Document 60-30 Filed 12/21/15 Page 2 of 386

CONFIDENTIAL

Transcript of James R. Fruchterman
Date: September 8, 2015
Case: American Educational Research Assoc., Inc., et al -vPublic.Resource.Org., Inc.

Planet Depos
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Internet: <www.planetdepos.com>

Court Reporting | Videography | Videoconferencing | Interpretation | Transcription

Case 1:14-cv-00857-TSC Document 60-30 Filed 12/21/15 Page 3 of 386

1
1

UNITED STATES DISTRICT COURT

2

FOR THE DISTRICT OF COLUMBIA

3
4

AMERICAN EDUCATIONAL RESEARCH

5

ASSOCIATION, INC., ET AL.,

6
7
8
9

PLAINTIFF,
vs.

No.

1:14-CV-00857-TSC-DAR

PUBLIC.RESOURCE.ORG, INC.,
DEFENDANT.
_____________________________

10
11
12
13

VIDEOTAPED DEPOSITION OF

14

JAMES R. FRUCHTERMAN

15

CONFIDENTIAL

16

Tuesday, September 8, 2015

17
18
19
20
21
22
23
24

Reported By:

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KATHLEEN WILKINS, CSR #10068, RPR-RMR-CRR-CCRR-CLR

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Confidential Videotaped Deposition of James R. Fruchterman
Conducted on September 8, 2015
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1
2

VIDEOTAPED DEPOSITION OF JAMES R. FRUCHTERMAN
BE IT REMEMBERED that on Tuesday,

3

September 8, 2015, commencing at the hour of

4

9:21 a.m. thereof, at FENWICK & WEST, LLP, 801

5

California Street, Mountain View, California,

6

before me, Kathleen A. Wilkins,

7

RPR-RMR-CRR-CCRR-CLR, a Certified Shorthand

8

Reporter, in and for the State of California,

9

personally appeared JAMES R. FRUCHTERMAN, a

10

witness in the above-entitled court and cause,

11

who, being by me first duly sworn, was thereupon

12

examined as a witness in said action.

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15
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20
21
22
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CONTAINS CONFIDENTIAL INFORMATION
PLANET DEPOS | 888.433.3767 | WWW.PLANETDEPOS.COM

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Confidential Videotaped Deposition of James R. Fruchterman
Conducted on September 8, 2015
3
APPEARANCES OF COUNSEL

1
2

FOR THE PLAINTIFFS:

3

QUARLES & BRADY LLP

4

BY:

5

1700 K Street, NW, Suite 825

6

Washington, D.C.

7

Telephone:

8

E-mail:

9

and

JONATHAN HUDIS, ESQ.

20006

[phone]

[e-mail]

10

OBLON, MCCLELLAND, MAIER & NEUSTADT,

11

L.L.P.

12

BY:

13

1940 Duke Street

14

Alexandria, Virginia

15

Telephone:

16

E-mail:

17

KATHERINE D. CAPPAERT, ESQ.

22314

[phone]

[e-mail]

FOR THE DEFENDANT:

18

FENWICK & WEST, LLP

19

BY:

20

555 California Street, 12th Floor

21

San Francisco, California

22

Telephone:

23

E-mail:

24
25

SEBASTIAN KAPLAN, ESQ.

94104

[phone]

[e-mail]

ALSO PRESENT:
STEVE PATAPOFF, VIDEOGRAPHER

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Confidential Videotaped Deposition of James R. Fruchterman
Conducted on September 8, 2015
4
1

INDEX

2

INDEX OF EXAMINATIONS

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PAGE

4

EXAMINATION BY MR. HUDIS ......................9

5

AFTERNOON SESSION ...........................143

6
INDEX OF EXHIBITS

7
8

EXHIBIT

9

Exhibit 48

DESCRIPTION

PAGE

Document entitled, ............12

10

"Subpoena to Testify in a

11

Civil Action"

12

Exhibit 49

R. Fruchterman

13
14

Curriculum Vitae, James .......21

Exhibit 50

Spreadsheet entitled, .........41

15

"Patents, Trademarks and

16

Copyrights of Calera

17

Recognition Systems,

18

Inc."

19

Exhibit 51

Spreadsheet entitled, .........50

20

"Patents and Trademarks

21

of RAF Technology, Inc."

22

Exhibit 52

Document entitled, ............68

23

"Patents and Trademarks

24

of Arkenstone, Inc."

25

/ /

CONTAINS CONFIDENTIAL INFORMATION
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Confidential Videotaped Deposition of James R. Fruchterman
Conducted on September 8, 2015
5
INDEX OF EXHIBITS (Continued)

1
2

EXHIBIT

3

Exhibit 53A

PAGE

United States Patent No. ......69
5,470,233

4
5

DESCRIPTION

Exhibit 53B

Document entitled, ............69

6

"Abstract of Title for

7

Application 08210239"

8

Exhibit 54

Spreadsheet entitled, .........98
"Trademarks and

9
10

Copyrights of Beneficent,

11

Inc."

12

Exhibit 55

Bookshare website

13
14

Screenshots from .............143

Exhibit 56

Document entitled, "The ......179

15

Chafee Amendment:

16

Improving Access to

17

Information"

18

Exhibit 57

Article entitled, ............185

19

"Developing Information

20

Technology to Meet Social

21

Needs"

22

Exhibit 58

Document entitled, ...........190

23

"Assistive Technology for

24

Visually Impaired and

25

Blind People"

CONTAINS CONFIDENTIAL INFORMATION
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Confidential Videotaped Deposition of James R. Fruchterman
Conducted on September 8, 2015
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INDEX OF EXHIBITS (Continued)

1
2

EXHIBIT

3

Exhibit 59

DESCRIPTION

PAGE

Document entitled, ...........208

4

"Declaration of James

5

Fruchterman in Support of

6

Motion For Summary

7

Judgment"

8

Exhibit 60

Document entitled, ...........208
"Supplemental Declaration

9
10

of James Fruchterman In

11

Support of Defendant

12

Intervenors' Opposition

13

to Plaintiffs' Motion For

14

Summary Judgment"

15

Exhibit 61

Westlaw reported version .....229

16

of district court opinion

17

in the Authors Guild,

18

Inc. versus HathiTrust,

19

et al., reported at 902

20

F.Supp.2d 445

21
22
23
24
25

/ /

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Confidential Videotaped Deposition of James R. Fruchterman
Conducted on September 8, 2015
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INDEX OF EXHIBITS (Continued)

1
2

EXHIBIT

3

Exhibit 62

DESCRIPTION

PAGE

Lexis reported version of ....237

4

the Second Circuit Court

5

of Appeals decision in

6

Authors Guild versus

7

HathiTrust reported at

8

755 F.3d 87

9

Exhibit 63

Document entitled, "The ......241

10

Internet Archive's Open

11

Library is violating

12

authors' copyrights"

13

Exhibit 64

Document entitled, ...........249

14

"Expert Report of James

15

R. Fruchterman"

16
17

EXHIBITS PREVIOUSLY MARKED

18

AND REFERRED TO IN THIS DEPOSITION

19

EXHIBIT

20

PAGE

Exhibit 34

304

21
22

QUESTIONS WITNESS INSTRUCTED NOT TO ANSWER

23

PAGE

LINE

24

221

8

25

227

4

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Confidential Videotaped Deposition of James R. Fruchterman
Conducted on September 8, 2015
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1

September 8, 2015
P R O C E E D I N G S

2
3

9:21 A.M.

THE VIDEOGRAPHER:

Good morning.

Here

09:16:23

4

begins Tape No. 1 in the video deposition of

09:20:44

5

James Fruchterman in the matter of American

09:20:47

6

Educational Research Association, Incorporated, et

09:20:49

7

al., versus Public.Resource.Org, Incorporated, in

09:20:53

8

the U.S. District Court of the District of

09:21:00

9

Columbia, Case Number 1:14-CV-00857-TSC-DAR.

09:21:02

10

Today's date is September 8th, 2015.

11

Time on the video monitor is 9:21 a.m.

12

videographer today is Steve Patapoff representing

09:21:18

13

Planet Depos.

09:21:21

14

place at Fenwick & West, 801 California Street,

09:21:23

15

Mountain View, California.

09:21:26

16
17
18
19
20
21
22

The

09:21:12

The video deposition is taking

Would counsel please voice-identify
themselves and state whom they represent.
MR. HUDIS:

09:21:15

09:21:29
09:21:31

Jonathan Hudis,

09:21:35

Quarles & Brady, LLP, for plaintiffs.

09:21:36

MS. CAPPAERT:

Katherine Cappaert from

Oblon, LLP, for plaintiffs.
MR. KAPLAN:

09:21:41
09:21:46

Sebastian Kaplan,

09:21:48

23

Fenwick & West, LLP, for defendant

09:21:49

24

Public.Resource.Org, Incorporated.

09:21:52

25

THE VIDEOGRAPHER:

Court reporter today

CONTAINS CONFIDENTIAL INFORMATION
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09:21:56

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Confidential Videotaped Deposition of James R. Fruchterman
Conducted on September 8, 2015
9
1

is Kathleen Wilkins representing Planet Depos.
Would the reporter please swear in the

2
3

witness.

09:21:56
09:21:59
09:22:01

4

JAMES R. FRUCHTERMAN,

09:22:11

5

having been duly sworn,

09:22:11

6

was examined and testified as follows:

09:22:11

7

EXAMINATION BY MR. HUDIS

09:22:10

8
9
10
11
12
13
14

BY MR. HUDIS:
Q.

Good morning, sir.

09:22:11
Would you state your

full name and address for the record.
A.

James Robert Fruchterman, Jr.

1850 Middlefield Road, Palo Alto, California.
Q.

And is that your business address or

your home address?

09:22:13
09:22:15
09:22:18
09:22:20
09:22:26
09:22:28

15

A.

My home address.

09:22:30

16

Q.

Could I have your business address,

09:22:31

17
18
19
20

please.
A.

09:22:33
My business address is 4780 California

Avenue, Palo Alto, California.
Q.

Mr. Fruchterman, I am here -- my name is

09:22:33
09:22:36
09:22:39

21

Jonathan Hudis, representing the plaintiffs in an

09:22:41

22

action in which you've been designated as an

09:22:45

23

expert witness.

09:22:47

24
25

My colleague, Katherine Cappaert, is
here with me and will be working with me during

CONTAINS CONFIDENTIAL INFORMATION
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09:22:48
09:22:50

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1
2

as you sit here today?
A.

09:47:43

Oh, many ideas.

Microfluidics, math and

09:47:46

3

science simulation software, more pattern

09:47:57

4

recognition companies, but none of these reached

09:48:06

5

the point of where I was actually employed,

09:48:10

6

because they never got started.

09:48:13

7

Q.

Could you define for us microfluidics?

09:48:14

8

A.

It's a semiconductor-based technology

09:48:18

for moving gases or fluids rather than electrical

09:48:22

10

current, but under the control of electrical

09:48:28

11

signals.

09:48:32

9

12
13

Q.

Any other notable projects in your

working background that you haven't told us about?

14

MR. KAPLAN:

15

THE WITNESS:

Objection.

Vague.

I taught night school, in

09:48:44
09:48:47
09:48:49

16

computer programming.

17

part of helping homeowners understand more of

09:48:59

18

their earthquake risks.

09:49:03

19

the early '80s, when I was trying to get my first

09:49:08

20

company really going.

09:49:11

21

BY MR. HUDIS:

09:49:14

22

Q.

I crawled under houses as

09:48:41

But those were back in

Since it's a fair part of your expert's

09:48:51

09:49:20

23

report, Mr. Fruchterman, in simple terms could you

09:49:24

24

please define what is "optical character

09:49:28

25

recognition" and what does it do?

09:49:31

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1

A.

So optical character recognition is the

09:49:36

2

process of having a machine recognizing letters

09:49:41

3

and words, generally from documents, though it can

09:49:44

4

be from other objects, and translating those into

09:49:49

5

the letter or word equivalent so that those things

09:49:53

6

can be processed.

09:49:59

So the most common application of

7

09:50:00

8

optical character recognition is scanning, let's

09:50:03

9

say, a page of a document and turning it into a

09:50:07

10

word processor file that is the equivalent of what

09:50:09

11

you would have done if you had typed it in, but

09:50:14

12

the machine, instead, had it scanned and then took

09:50:16

13

the picture of the page and turned it into the

09:50:19

14

text of the page.

09:50:23

So for the remainder of this deposition,

09:50:25

16

if I use the initials "OCR," we'll understand that

09:50:28

17

to mean "optical character recognition"?

09:50:32

15

Q.

18

A.

Yes.

09:50:35

19

Q.

Is OCR a common method of creating

09:50:36

20

searchable digital copies of texts?
MR. KAPLAN:

21
22
23

Objection.

09:50:39
Competence.

Vague.

09:50:47
09:50:52

THE WITNESS:

It is the most common form

09:50:55

24

when the source document is in physical or solely

09:50:56

25

image-based form, but it's probably not the most

09:51:02

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1

common.

09:51:07

2

BY MR. HUDIS:

09:51:07

3

Q.

What is the most common?

09:51:07

4

A.

Having digitally created content that

09:51:09

5
6

stays digital and then is searched.
Q.

So, for example -MR. KAPLAN:

7

09:51:11
09:51:13

Can I just interject.

For

09:51:14

8

the court reporter, you had my objection as

09:51:16

9

"compound."

09:51:17

It was "competence."

I just wanted

10

to make sure we had that on the record.

09:51:21

11

BY MR. HUDIS:

09:51:50

So, for example, Mr. Fruchterman, a

09:51:50

13

document created in Microsoft Word would be a

09:51:52

14

method of creating searchable digital text?

09:51:58

12

Q.

MR. KAPLAN:

15
16

hypothetical.

Objection.

Vague.

THE WITNESS:

17

Incomplete

09:52:01
09:52:02

It would be a great source

09:52:06

18

document to put into a system that analyzed

09:52:07

19

documents for full text.

09:52:12

20

you repeat the question.

09:52:18

21

BY MR. HUDIS:

09:52:19

22
23

Q.

I'm not sure -- could

Yes.

09:52:20

So, for example, a document created in

09:52:23

24

Microsoft Word would be a method of creating

09:52:26

25

searchable digital text?

09:52:29

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Confidential Videotaped Deposition of James R. Fruchterman
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I might want to know pages that mention

12:09:18

2

Constitution and bananas on the same page.

12:09:24

Q.

3
4

All right.

So that would be a Boolean

search?
A.

5

12:09:27
12:09:29

Yes.

So there are searches you could

12:09:29

Those are easier to do on digital content,

12:09:31

6

do.

7

obviously.

8

word spotting as well.

9

skimming that people do.

But, you know, human beings often do
Skimming.

There's

12:09:38
12:09:41

And -- I mean, there are other tasks

10

12:09:34

I choose to focus on those as the

12:09:42

11

that people do.

12

primary ones that encompass what 95 percent or

12:09:51

13

more people would want to do with a given

12:09:55

14

document.

12:09:57

15

Q.

And those functional tasks, just to

12:09:47

12:09:57

16

summarize -- I've been listening very carefully --

12:10:00

17

to obtain the content, to read the content, to use

12:10:03

18

the structure of the document such as by markup or

12:10:06

19

by search, to skim the document and more

12:10:08

20

complicated phrase searches?

12:10:10

21

A.

MR. KAPLAN:

22
23

Yeah.

12:10:12
Objection.

Misstates

testimony.

12:10:13
12:10:14

24

Go ahead.

25

THE WITNESS:

12:10:15
More or less, yeah.

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1
2

BY MR. HUDIS:
Q.

Okay.

12:10:17
All right.

Could Bookshare's

12:10:18

3

members with print disabilities access the content

12:10:26

4

in the TIFF file created by the process you

12:10:28

5

described earlier without having the file undergo

12:10:33

6

an OCR process?

12:10:36

MR. KAPLAN:

7
8

hypothetical.

Vague.

Objection.

Incomplete

Lacks foundation.

12:10:42

9

THE WITNESS:

10

being read it to them.

12:10:46

11

BY MR. HUDIS:

12:10:54

12

Q.

They could have a human

12:10:39

Without intervention by another human

12:10:45

12:10:56

13

being, could Bookshare's members with print

12:11:00

14

disabilities access the TIFF file created as we

12:11:05

15

discussed -- I'm going to rephrase the question.

12:11:08

16

Without human intervention, could

12:11:15

17

Bookshare's members with print disabilities access

12:11:17

18

the content in the TIFF file without having

12:11:19

19

undergone the OCR process?

12:11:23

20
21
22

MR. KAPLAN:
hypothetical.

Vague.

THE WITNESS:

Objection.

Incomplete

Lacks foundation.
I think the answer is no.

12:11:24
12:11:26
12:11:28

23

They need either OCR or a human to access TIFF

12:11:31

24

images if they're completely blind.

12:11:36

25
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1
2
3

BY MR. HUDIS:
Q.

Now, what if they are a low-vision

reader?

hypothetical.

Vague.

THE WITNESS:

6

12:11:41
12:11:43

MR. KAPLAN:

4
5

12:11:41

Objection.

Incomplete

Lacks foundation.
Then they could view the

12:11:44
12:11:46
12:11:48

7

TIFF image magnified or otherwise visually

12:11:52

8

processed and read the document.

12:11:56

9

BY MR. HUDIS:

12:11:58

10

Q.

What do you mean by "visually

11

processed"?

12:11:59

12

A.

12:12:03

An example -- one obvious example is

13

making it bigger.

14

contrast so that instead of being black text on a

12:12:09

15

white background, being white text on black

12:12:12

16

background.

12:12:15

17

that people with low vision benefit from other

12:12:18

18

than those two.

12:12:22

19

Q.

Another one is reversing the

12:11:59

There are many other visual things

Those are the two most common.

With the current state of technology as

12:12:06

12:12:26

20

you know it, how accurate is the OCR process in

12:12:27

21

recognizing words on a printed page?

12:12:32

22

MR. KAPLAN:

23

THE WITNESS:

24
25

Objection.

Vague.

It's quite good.

BY MR. HUDIS:
Q.

Is there a known error recognition rate?

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1
2

BY MR. HUDIS:
Q.

01:32:17

And that would include what we talked

01:32:18

3

about earlier; that's the storage of the content

01:32:20

4

on your service -- on your servers or, more

01:32:23

5

recently, the Amazon cloud --

01:32:26

MR. KAPLAN:

6
7
8

01:32:29

BY MR. HUDIS:
Q.

01:32:29

-- in a secure manner?
MR. KAPLAN:

9
10

Objection.

testimony.

Misstates

Vague.
THE WITNESS:

11

Objection.

01:32:29
01:32:31
01:32:32

I would differentiate

01:32:35

12

between things that are just the way we operate

01:32:36

13

the service and representations or changes we've

01:32:38

14

made in conversations with the publishers.

01:32:41

There are many, many things where we

15

01:32:44

16

simply say, We're doing it this way, and -- they

01:32:45

17

don't -- the association doesn't have any ability

01:32:50

18

to approve of our activities.

01:32:53

19

place, as it were.

01:32:57

20

BY MR. HUDIS:

01:32:59

It's not their

21

Q.

Right.

01:32:59

22

A.

They're simply a way to effectively

01:33:01

23

converse with the industry association and with

01:33:03

24

the industry.

01:33:06

25

think their members want to hear about, they'll go

And if they see an issue that they

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back to their members and talk to them.

2

So it's

an efficiency mechanism.

01:33:14

But there is a difference between things

3

01:33:12

01:33:16

4

we just do and things we've explicitly conversed

01:33:17

5

with them and maybe made changes as a result of

01:33:21

6

that conversation.

01:33:23

So what I'm concerned about is how you

01:33:24

8

worked with the American -- with the Association

01:33:27

9

of American Publishers to make them comfortable

01:33:30

10

that the Bookshare site would not be subject to

01:33:34

11

abuse.

01:33:37

7

Q.

MR. KAPLAN:

12
13

Was there a

question?
Yes.

I'll phrase it a

different way.

01:33:44
01:33:48

In what ways did you work with the

01:33:49

17

Association of American Publishers to ensure

01:33:50

18

that -- to make them comfortable that the

01:33:56

19

Bookshare site would not be the subject of abuse?

01:33:59

20

That people in the sighted community would not be

01:34:03

21

able to download their content without permission,

01:34:06

22

without compensation?

01:34:11

23

MR. KAPLAN:

16

24
25

Q.

01:33:40
01:33:43

MR. HUDIS:

14
15

Objection.

Objection.

Argumentative.

Vague.

01:34:13
01:34:14

THE WITNESS:

Okay.

So we're now in a

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much narrower area, and I'd say the

01:34:21

2

representations in our seven-point digital rights

01:34:25

3

management plan were the primary mechanism that we

01:34:32

4

dealt with that particular concern of the

01:34:37

5

publishing industry.

01:34:40

6

BY MR. HUDIS:

01:34:41

7
8

Q.

Okay.

The last sentence on that page,

page 15 of Exhibit 55, it says:

01:34:49

"With the extensive input

9

01:34:46

01:34:51

10

from consumers, authors,

01:34:54

11

publishers and leading

01:34:56

12

organizations, we have created a

01:34:57

13

model for Bookshare that can be

01:34:59

14

supported by a broad array of

01:35:01

15

interests."

01:35:04

What model is this passage talking

16
17

about?

19

01:35:08
MR. KAPLAN:

18

Objection.

Lacks

foundation.
THE WITNESS:

20

01:35:05

01:35:09
01:35:10

The Bookshare operational

01:35:14

21

model.

01:35:17

22

BY MR. HUDIS:

01:35:21

23
24
25

Q.

How would you describe the Bookshare

operational model?
A.

A package of technologies and policies

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and legal agreements and product features and -- I

01:35:27

2

mean, you know, it's a -- these things combined

01:35:33

3

create a service that delivers a value to people

01:35:38

4

with disabilities in a way that gets support from

01:35:46

5

these different stakeholders.

01:35:48

6

Q.

Including the publishing industry?

01:35:53

7

A.

Yes.

01:35:55

8

Q.

Could we turn to page 16 of Exhibit 55.

01:35:57

Under copyright information, it says:

01:36:00

9
10

"Bookshare is an online

01:36:02

11

library that provides accessible

01:36:04

12

eBooks to people with print

01:36:06

13

disabilities.

01:36:07

14

requirements of the Chafee

01:36:09

15

Amendment which permits an

01:36:09

16

authorized entity like Benetech to

01:36:12

17

make books available to people

01:36:14

18

with print disabilities provided

01:36:16

19

that copies may not be reproduced

01:36:17

20

or distributed in a format other

01:36:19

21

than a specialized format

01:36:21

22

exclusively for use by blind or

01:36:23

23

other persons with disabilities.

01:36:25

24

Must bear a notice that any

01:36:27

25

further reproduction or

01:36:32

Bookshare meets the

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distribution in a format other

01:36:33

2

than a specialized format is an

01:36:35

3

infringement.

01:36:37

4

copyright notice identifying the

01:36:39

5

copyright owner and the date of

01:36:43

6

the original publication.

01:36:45

7

'Specialized formats' means

01:36:46

8

Braille, audio or digital text

01:36:50

9

which is exclusively intended for

01:36:53

10

use by blind or other persons with

01:36:54

11

disabilities."

01:36:56

12

All right.

13

Must include a

So I've read this passage,

Mr. Fruchterman.

01:36:59
01:37:01

14

A.

Right.

01:37:01

15

Q.

Does this accurately describe the

01:37:01

16

overall way that Benetech makes reading materials

01:37:03

17

available to its members?

01:37:07

18
19
20

MR. KAPLAN:

Objection.

Vague.

Misleading.
THE WITNESS:

01:37:08
01:37:09

I think that these bullet

01:37:14

21

points that you just read recapitulate the

01:37:16

22

provisions of the Chafee Amendment, which is the

01:37:19

23

primary copyright exception that we use for making

01:37:23

24

copyright material to people with qualifying

01:37:26

25

disabilities inside the United States.

01:37:28

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1
2

BY MR. HUDIS:
Q.

01:37:31
01:37:31

What is the purpose of this page on

3

If we could go to page 17 of Exhibit 55.

01:37:36

4

Bookshare's web site?

5

MR. KAPLAN:

6

01:37:38
Objection.

Vague.

Lacks

foundation.

01:37:41

THE WITNESS:

7

01:37:40

This is part of our,

01:37:44

8

essentially, frequently asked questions, and it's

01:37:45

9

entitled "Digital Millennium Copyright Act."

01:37:49

10

And so as a -- and I'm not a lawyer, but

01:37:54

11

my understanding is is someone who provides access

01:37:58

12

to copyrighted material online, we are required to

01:38:02

13

have a DMCA agent to accept notices that there is

01:38:06

14

content on our web site that infringes the

01:38:12

15

copyright of others.

01:38:14

We frequently get DMCA notices from

16

01:38:17

17

authors or their agents or publishers saying, We

01:38:23

18

searched the web.

01:38:26

19

web site.

20

This copyright work is on your

Take it down.
And this is both explaining the DMCA

01:38:29
01:38:30

21

notice process at some level, as well as the, more

01:38:36

22

or less, if you don't know what the Chafee

01:38:40

23

Amendment is, you should look it up because we're

01:38:42

24

allowed to have it.

01:38:47

25

But I'm summarizing this in very direct

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terms, because it's very rare for someone to issue

01:38:54

2

us a DMCA notice that results in us actually

01:38:56

3

taking down the work because it's usually legally

01:39:01

4

permitted under the copyright amendment.

01:39:04

5

BY MR. HUDIS:

01:39:05

6

Q.

The Chafee Amendment to the copyright?

01:39:06

7

A.

The Chafee Amendment.

01:39:07

Or often a

8

license from the author's publisher who gave us

01:39:10

9

the content, but the author and their agent

01:39:12

10

weren't aware this was one of the nice things that

01:39:14

11

their publisher did for their entire catalog of

01:39:17

12

books, not just that author.

01:39:21

13
14

Q.

Mr. Fruchterman, could we turn to page

18 of Exhibit 55.

01:39:25

Is this text on page 18 Bookshare's

15

01:39:23

01:39:34

16

digital rights plan -- digital rights management

01:39:40

17

plan?

01:39:46

18

A.

This is the current or, let's just say,

01:39:46

19

last month's current -- but I don't believe it's

01:39:49

20

changed since last month -- version of our

01:39:51

21

seven-point digital rights management plan that we

01:39:53

22

have discussed earlier.

01:39:56

23
24
25

Q.

And what was the purpose of Bookshare

implementing this DRM plan?
MR. KAPLAN:

Objection.

01:39:58
01:39:59

Vague.

Lacks

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foundation.
THE WITNESS:

2

01:40:05
I would say that the

01:40:11

3

purpose of this was to represent to the

01:40:12

4

intellectual property industry, especially

01:40:17

5

publishers, that we were intending to follow the

01:40:19

6

law when it came to use of these materials.

01:40:22

7

was created for that original conversation we had

01:40:25

8

with the publishing industry quite a number of

01:40:27

9

years ago.

01:40:31

BY MR. HUDIS:

01:40:31

10
11

Q.

So it

And when you say "these materials,"

01:40:32

12

that's the copyrighted materials on the Bookshare

01:40:34

13

web site?

01:40:36
MR. KAPLAN:

14
15

Misstates

testimony.

01:40:39
01:40:40

THE WITNESS:

16
17

Objection.

Yes.

01:40:42

BY MR. HUDIS:

01:40:43

18

Q.

Could we turn to page 19.

01:40:43

19

A.

Mh-hmm.

01:40:46

20

Q.

What's the purpose of this sign-up page?

01:40:46

21
22
23
24
25

That's page 19 of Exhibit 55.
MR. KAPLAN:

Objection.

01:40:52
Vague.

Lacks

foundation.
THE WITNESS:

01:40:54
01:40:55

This is a screen shot that

appears to be of the individual sign-up for

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1

Bookshare that is collecting data about a

01:41:22

2

potential user in order to start the process of

01:41:24

3

becoming a Bookshare member.

01:41:29

4

BY MR. HUDIS:

01:41:32

And at the bottom it says -- it has a

01:41:32

6

check box, and then you would sign your name or

01:41:34

7

its equivalent.

01:41:36

5

Q.

Do you see at the bottom?

8

01:41:38

9

A.

Yes.

01:41:39

10

Q.

And by doing so you're agreeing to the

01:41:39

11

terms and conditions of the Bookshare web site.

12

Do you see that?

13

MR. KAPLAN:

14

01:41:44

Objection.

Is the -- the

question is whether or not he sees that check box?
MR. HUDIS:

15

Counsel, good.

01:41:45
01:41:49
01:41:53

Is the purpose of this check box to have

01:41:55

17

the user acknowledge that he or she is agreeing to

01:42:02

18

the terms and conditions of the Bookshare web

01:42:04

19

site?

01:42:07

16

20
21

Q.

01:41:42

MR. KAPLAN:

Objection.

Vague.

Lacks

foundation.

22

MR. HUDIS:

23

THE WITNESS:

01:42:08
01:42:09

Thank you, Counsel.
Yes.

I believe that that

01:42:10
01:42:13

24

check box and the filling in of your name

01:42:14

25

indicates that you're agreeing to the terms and

01:42:17

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technique still in wide use today.

02:19:04

2

The Perkins Brailler and Braille

02:19:06

3

printing presses are important

02:19:10

4

tools for professionals to use to

02:19:11

5

create Braille books.

02:19:16

6

human-narrated books are widely

02:19:17

7

available on audio cassettes."

02:19:20

And

We've replaced audio cassettes at this

8

02:19:23

point with technology, but the rest of it, are

02:19:25

10

these still document transformation methods in use

02:19:31

11

today?

02:19:33

9

MR. KAPLAN:

12
13
14

Objection.

02:19:34

BY MR. HUDIS:
Q.

02:19:34

All right.

And that -- and the ones

02:19:34

15

that I'm pointing to are having the sighted person

02:19:35

16

read aloud, the Perkins Brailler and a Braille

02:19:39

17

printing press.

02:19:42

18

MR. KAPLAN:

19

THE WITNESS:

Objection.

Vague.

All of these are still in

02:19:46
02:19:48

20

use today.

02:19:49

21

BY MR. HUDIS:

02:19:50

22
23

Q.

Now, the next paragraph, it says:

02:19:55

"Technology in use today has

02:19:56

24

greatly expanded the options

02:19:58

25

available for accessible reading

02:19:59

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and lessoned the need to have a

02:20:01

2

sighted person intervene in the

02:20:03

3

process.

02:20:04

4

transcription software, personal

02:20:06

5

Braille embossers, refreshable

02:20:08

6

electronic Braille displays for

02:20:11

7

audio.

We have computer

02:20:13

8

synthesized voices to speak aloud

02:20:15

9

digital text, also known as text

02:20:19

to speech or TTS."

02:20:21

10

We now have Braille

My question is, are these technologies

11

02:20:23

12

still in use today as nonhuman intervention

02:20:26

13

methods for the print-disabled to access printed

02:20:30

14

material?

02:20:36
MR. KAPLAN:

15
16

19
20

Vague and

confusing.
Yes.

BY MR. HUDIS:
Q.

02:20:37
02:20:38

THE WITNESS:

17
18

Objection.

The next sentence says:
"With reading systems that

02:20:41
02:20:42
02:20:47
02:20:49

21

use optical character recognition,

02:20:50

22

or OCR, we can provide access to

02:20:52

23

Braille, audio and customized

02:20:56

24

visual displays directly from the

02:20:58

25

printed page."

02:21:00

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Why is this important?

2

MR. KAPLAN:

3

THE WITNESS:

Objection.

02:21:01
Vague.

02:21:02

Because we want to turn

02:21:11

4

inaccessible print books into forms where disabled

02:21:13

5

people can access them using OCR.

02:21:16

6

BY MR. HUDIS:

02:21:21

Q.

8
9

Could we turn to page 557 of Exhibit 58.

02:21:21

At the bottom of page 50 -- 557 to the

7

02:21:34

top of 558 it says:

02:21:37

"Authors and publishers of

10

02:21:39

11

books are concerned about piracy

02:21:41

12

and worry about making books

02:21:43

13

easily available in electronic

02:21:45

14

form, although they rarely object

02:21:47

15

to access for people with

02:21:49

16

disabilities."

02:21:50

17

Do you believe this is still true?

02:21:51

18

MR. KAPLAN:

02:21:54

19

THE WITNESS:

20

23

Vague.

Yes.

02:22:10

BY MR. HUDIS:
Q.

21
22

Objection.

02:22:11

Mr. Fruchterman, could we turn to page

558.

02:22:23
02:22:25

A.

Yes.

24

MR. KAPLAN:

25

MR. HUDIS:

02:22:27
We were there.
We were there.

02:22:29
Okay.

Thank

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you.
Q.

I would like to direct your attention to

02:22:39

the middle of the page, where it starts "however."

02:22:40

2
3

02:22:31

4

A.

Yes.

5

Q.

All right.

02:22:45
It says:

02:22:46

"However, the image cannot be

6

02:22:47

7

directly used to generate Braille

02:22:49

8

or synthetic voice output."

02:22:51

Why is that?

9

MR. KAPLAN:

10
11

foundation.

Objection.

Vague.

Lacks

Incomplete hypothetical.

THE WITNESS:

12

02:22:54

You need to convert the

02:22:55
02:22:56
02:23:04

13

inaccessible image into a text file in OCR.

02:23:05

14

BY MR. HUDIS:

02:23:14

Q.

15
16

Mr. Fruchterman, could you turn to page

560 of Exhibit 58.

02:23:26

This paragraph at the bottom of page 560

17

02:23:24

02:23:40

18

talks about the image processing steps of -- in

02:23:46

19

OCR.

02:23:49

20

and straightening the page, recognition of

02:23:55

21

specialty fine characteristics and recognition of

02:23:57

22

a character or glyph.

02:24:01

And it talks about despeckling, orienting

23

Are those the --

02:24:02

24

MR. KAPLAN:

02:24:05

25

You're talking about the

last full paragraph, not the last paragraph?

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What is the DAISY standard?

1
2

A.

02:26:50

The DAISY standard is a standard for

02:26:58

3

delivering accessible books to people with

02:27:01

4

disabilities.

02:27:05

5

Q.

Is that standard still in use today?

02:27:06

6

A.

It is.

02:27:11

7

Q.

By whom?

02:27:11

MR. KAPLAN:

8
9

foundation.

Objection.

Vague.

02:27:14
02:27:14

THE WITNESS:

10

Lacks

The DAISY consortium is

02:27:17

11

essentially the leading libraries for people with

02:27:21

12

print-disabilities, and I believe almost all of

02:27:25

13

the DAISY members' libraries use the DAISY format

02:27:27

14

as part of their system of delivering accessible

02:27:32

15

books to their disabled patrons.

02:27:35

16

BY MR. HUDIS:

02:27:37

17

Q.

19

02:27:37

MR. KAPLAN:

18

Is this a proprietary format?

02:27:41

Objection.

Vague.

Confusing.
MR. HUDIS:

20
21

Q.

I'll ask -- I'll reask the

question.

22

02:27:41

23
24
25

02:27:42
02:27:44

Is DAISY a proprietary format by the

participating libraries in the consortium?
MR. KAPLAN:

Objection.

Vague.

Confusing.

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THE WITNESS:

1

My understanding is the

02:27:55

2

DAISY format is shared widely so that anyone can

02:27:57

3

use the standard and it is not proprietary to the

02:28:01

4

members.

02:28:04

5

BY MR. HUDIS:

02:28:04

6

Q.

7

PDF file?
Objection.

Vague and

confusing.

02:28:11
02:28:13

THE WITNESS:

10

02:28:04
02:28:07

MR. KAPLAN:

8
9

Does this technology require use of a

It's the antithesis of a

02:28:14

11

PDF file.

02:28:16

12

BY MR. HUDIS:

02:28:19

13

Q.

Okay.

And why do you say that?

02:28:20

14

A.

Because PDFs are frequently not

02:28:22

15

accessible in the form that they present

02:28:25

16

themselves.

02:28:27

17

Q.

Without OCR technology?

02:28:28

18

A.

That's --

02:28:31

19

MR. KAPLAN:

20

THE WITNESS:

21

with PDFs.

22

Objection.

Vague.

That's one of the problems

BY MR. HUDIS:

23

Q.

Yes.

All right.

02:28:31
02:28:32
02:28:34
02:28:35

So does -- does the DAISY

02:28:36

24

technology require use of an OCR-processed PDF

02:28:38

25

file?

02:28:42

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MR. KAPLAN:

1
2

Vague and

02:28:44

confusing.

02:28:45
THE WITNESS:

3
4

Objection.

No.

02:28:46

BY MR. HUDIS:

5

Q.

6

02:28:49

What is required for use of DAISY

technology?

7

MR. KAPLAN:

8

THE WITNESS:

9

02:28:49
02:28:51

Objection.

Vague.

02:28:53

Well, the DAISY standard

is a format for digitally delivering typically

02:28:57
02:29:01

10

books, but could be other kinds of documents.

It

11

encompasses digital text, structure, audio, video,

02:29:08

12

pictures, tactile graphics.

02:29:12

02:29:05

13

And so a DAISY book might contain one or

02:29:17

14

all of those different elements without respect to

02:29:21

15

how it was created or how it will get used.

02:29:27

16

just a file format.

02:29:31

17

BY MR. HUDIS:

02:29:32

18

Q.

And -MR. KAPLAN:

19

It's

02:29:32
Can we, when you're done

02:29:33

20

with this line of questioning, take a very short

02:29:34

21

break?

02:29:37

22

MR. HUDIS:

23

MR. KAPLAN:

24
25

Yes.
Thank you.

BY MR. HUDIS:
Q.

And DAISY -- DAISY-processed texts can

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1

the screen aloud.

2

Q.

3

04:13:47

All right.

And is that example of text

to speech?

04:13:49
04:13:52

4

MR. KAPLAN:

5

THE WITNESS:

Objection.

Vague.

Different users use their

04:13:54
04:13:56

6

screen reader with different forms of information.

04:13:58

7

The most common is text to speech.

04:14:04

8

example, a deaf/blind person uses a screen reader

04:14:06

9

with a Braille display, and the text is -- that's

04:14:11

10

on the screen is presented on the Braille display.

04:14:15

11

BY MR. HUDIS:

04:14:18

12
13

Q.

But, for

And, again, so that -- if it's a blind

and deaf person, it would be a tactile Braille?

04:14:26

15

sensible uses of Braille are tactile, though there

04:14:33

16

are sighted people who can read Braille visually,

04:14:38

17

so ...

04:14:42

18

Q.

19

All Braille is tactile.

04:14:22

Or at least all

14

A.

04:14:20

I'd like to know if you recognize these

as brand names of screen reader technology.

04:14:43
04:14:45

JAWS from Freedom Scientific?

20

04:14:48

21

A.

Yes.

04:14:50

22

Q.

Window-Eyes from GW Micro?

04:14:52

23

A.

Yes.

04:14:54

24

Q.

Okay.

25

Dolphin SuperNova from Dolphin

Computer Access?

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1

A.

Yes.

04:15:00

2

Q.

System Access from Serotek?

04:15:00

3

A.

Yes.

04:15:02

4

Q.

ZoomText from Ai Squared?

04:15:04

5

A.

ZoomText is a combination screen reader,

04:15:08

6

but most people think of it as a screen

04:15:10

7

magnification product.

04:15:13

8

Q.

And NVDA open source screen reader.

04:15:14

9

A.

Yes.

04:15:17

10

Q.

Would screen reader technology work with

04:15:21

11

an image-only PDF document?
MR. KAPLAN:

12
13

hypothetical.

Incomplete

Vague.

THE WITNESS:

14

Objection.

04:15:24
04:15:29
04:15:31

Some do.

Some screeners

04:15:32

15

also have image magnification as well as screen

04:15:33

16

reading.

04:15:37

17

contrast by reversing the contrast or changing the

04:15:40

18

colors, so -- but that would be not the typical

04:15:43

19

use.

04:15:50

20

BY MR. HUDIS:

04:15:50

So you can make it big or change the

21

Q.

22

technology?
MR. KAPLAN:

23
24
25

What is the typical use of screen reader

04:15:51
04:15:53

Objection.

Vague.

Confusing.

04:15:53
04:15:54

THE WITNESS:

Generally, to read what's

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on the screen aloud in words.

04:15:57

2

BY MR. HUDIS:

04:15:59

3

Q.

So text to speech?

04:15:59

4

A.

Yes.

04:16:00

5

Q.

So would screen reader technology for

04:16:01

6

text to speak -- text to speech work with an

04:16:04

7

image-only PDF document?

04:16:12

MR. KAPLAN:

8
9

hypothetical.

11
12

Incomplete

Vague.

THE WITNESS:

10

Objection.

04:16:17
No.

04:16:19

BY MR. HUDIS:
Q.

04:16:16

04:16:22

Mr. Fruchterman, please turn to page 4

13

of your report.

And I'm focusing in on the first

14

full paragraph of that page.

15

"For the purpose of this report."

The paragraph starts

04:16:33
04:16:35
04:16:40
04:16:46

Do you see that?

16

04:16:49

17

A.

Mh-hmm.

04:16:49

18

Q.

And the second sentence says:

04:16:50

19

"Based on the information the

04:16:51

20

screen reader can glean from the

04:16:52

21

pages displayed on the screen, can

04:16:55

22

a blind person locate the standard

04:16:57

23

and read it."

04:17:00

24
25

In this context, what did you mean by
"locate the standard"?

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1

A.

2

searches.

3

Q.

4

A.

8

Q.

Basically, read it aloud, generally,

04:17:29
04:17:31

Which, if the person was blind, could

04:17:37
04:17:39

MR. KAPLAN:

Objection.

Vague and

confusing.

04:17:40
04:17:41

THE WITNESS:

11

04:17:17
04:17:19

not do?

9
10

And in this context, what did you mean

would be the most common use.

7

04:17:07
04:17:10

by "read the standard"?

5
6

In this context, I was focusing on web

Well, if they located a

04:17:54

12

text version of the standard, they certainly could

04:17:56

13

read it aloud.

04:17:59

14

BY MR. HUDIS:

04:18:01

Q.

15
16
17

They'd need assistive technology to do

so?

04:18:02
04:18:05

A.

Yes.

But when -- when I use the term

04:18:08

18

"can a blind person read it," I'm presuming that

04:18:10

19

they're using technology to read it as opposed to

04:18:16

20

something else.

04:18:22

21
22

Q.

And when you say "use technology," what

did you mean?

23

MR. KAPLAN:

24

THE WITNESS:

04:18:23
04:18:25

Objection.
Okay.

Vague.

Taking a step back.

25
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1
2

BY MR. KAPLAN:
Q.

A.

So let's take that one at a time.

05:16:35

So you checked for adds?

3
4

05:16:35

05:16:37

Well, I examined the document, and I'm

05:16:39

5

talking about errors I observed as opposed to

05:16:41

6

errors I didn't observe.

05:16:44

7

I would have been seeing it.

So if I had seen an add,
I don't know.

05:16:47

8

Q.

So --

05:16:50

9

A.

I was looking for errors.

05:16:51

10

Q.

Right.

05:16:52

11

So my first question is, did you

check for adds errors?

12

MR. KAPLAN:

13

THE WITNESS:

05:16:55
Objection.

Vague.

If I -- if an add had been

05:16:58
05:16:59

14

there and I had been looking at it, I would have

05:17:01

15

been checking for them, yes.

05:17:03

16

BY MR. KAPLAN:

But --

05:17:05

17

Q.

And you didn't find any?

05:17:06

18

A.

I didn't see any adds.

05:17:07

19

Q.

And did you check the entire 212 pages

05:17:08

20

of the document for adds errors?

05:17:11

21

A.

No.

05:17:13

22

Q.

So now we're at page 10, at the bottom

05:17:22

23

of page -- of Exhibit 64, your expert's report.

05:17:24

24

A.

Yes.

05:17:28

25

Q.

After you OCR-processed select pages

05:17:29

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from the image-only PDF file of the 1999 standards

05:17:32

2

given to you by defense counsel, you used the

05:17:35

3

Window-Eyes software tool to read text aloud and

05:17:39

4

to conduct full-text searches by keyword?

05:17:43

5

A.

Right.

6

Q.

All right.

05:17:47
Now, Mr. Fruchterman, you

05:17:48

7

could not use the Window-Eyes software tool to

05:17:51

8

read text of the 1999 standards aloud or to

05:17:54

9

conduct full-text searches by keyword before the

05:17:58

PDF pages were OCR processed.

05:18:01

10

MR. KAPLAN:

11
12

Objection.

Vague.

Compound.

05:18:05
THE WITNESS:

13

05:18:04

You're making a statement.

05:18:10

14

What's the question?

05:18:10

15

BY MR. KAPLAN:

05:18:13

16
17

Q.

All right.

I will ask the question a

different way.

05:18:14

Could you use the Window-Eyes software

18

05:18:13

05:18:16

19

tool to read the text of the 1999 standards aloud

05:18:18

20

before the PDF pages were OCR processed?

05:18:22

MR. KAPLAN:

21
22

25

Vague.

Confusing.
No.

BY MR. KAPLAN:
Q.

05:18:25
05:18:26

THE WITNESS:

23
24

Objection.

Could you use the Window-Eyes software

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to conduct full-text searches by keyword before

05:18:34

2

the PDF pages were OCR processed?

05:18:37

MR. KAPLAN:

3
4

7

Vague and

confusing.
No.

05:18:46

BY MR. KAPLAN:
Q.

05:18:41
05:18:41

THE WITNESS:

5
6

Objection.

05:18:46

And, in fact, Mr. Fruchterman, you could

05:18:53

8

not use any screen reader software tool to read

05:18:54

9

the text of the 1999 standards aloud before the

05:18:57

PDF pages were OCR processed?

05:19:01

10

MR. KAPLAN:

11
12

Objection.

Vague and

confusing.

05:19:05
THE WITNESS:

13

05:19:04

That's correct.

But some

05:19:09

14

screen readers have OCR software built in and

05:19:10

15

would be able to do that process inside the screen

05:19:13

16

reader.

05:19:15

17

screen reader.

18

BY MR. KAPLAN:

19

But I did not do that process inside the

Q.

I did it in a separate product.

05:19:18
05:19:21

And you could not use a screen reader

05:19:21

20

software tool to conduct full-text searches by

05:19:23

21

keyword before the PDF pages were OCR processed?

05:19:26

MR. KAPLAN:

22
23
24

Objection.

Vague and

confusing.

05:19:31
05:19:32

THE WITNESS:

Correct.

25
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1
2

BY MR. KAPLAN:
Q.

05:19:33

Let's turn to pages 11 and 12 of your

05:19:39

And I'm focusing on the textual material

05:19:42

3

report.

4

in your report, Mr. Fruchterman, under the title

05:19:50

5

"The Archive.Org Version of the 1999 Standards."

05:19:53

6

A.

Yes.

05:19:57

7

Q.

Now, it's true you were -- it's true you

05:19:59

8

were told by a representative of the Internet

05:20:09

9

Archive that an electronic text or txt version of

05:20:11

10

the '99 standards was hosted on the Internet

05:20:15

11

Archive web site at one time?

05:20:18

12

A.

Yes.

05:20:20

13

Q.

You did not attempt to locate a

05:20:21

14

historical version of the Internet Archive web

05:20:24

15

site to determine whether an electronic text

05:20:26

16

version of the 1999 standards was previously

05:20:29

17

hosted on Internet Archive?

05:20:32

MR. KAPLAN:

18
19

Objection.

Vague and

confusing.

05:20:40
THE WITNESS:

20

05:20:34

Not beyond doing a Google

05:20:41

21

search, which I don't believe turned it up for me.

05:20:43

22

But it might have if I kept going in the results.

05:20:45

23

BY MR. HUDIS:

05:20:47

24
25

Q.

But if you did, you didn't document it

in your report.

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Q.

I'm sorry.

It's late.

05:27:02

Mr. Fruchterman --

2

05:27:04

3

A.

Yes.

05:27:04

4

Q.

-- if you could turn to page 7 of your

05:27:04

5

expert's report, Exhibit 64.
MR. KAPLAN:

6
7

05:27:07

That one almost slipped

past me.

05:27:10
05:27:10

8

(Reporter interruption.)

05:27:10

9

MR. HUDIS:

05:27:11

10

What he said was I

blew past him.
MR. KAPLAN:

11
12

Sure.

05:27:20
Yes.

05:27:22

BY MR. HUDIS:

05:27:22

13

Q.

Are you there, Mr. Fruchterman?

05:27:23

14

A.

I am.

05:27:24

15

Q.

Thank you.

05:27:25

As part -- now, looking at page 7, the

05:27:26

16
17

top paragraph of your expert's report, as part of

05:27:29

18

your accessibility review for the purposes of your

05:27:34

19

expert's report, you reviewed the

05:27:35

20

Public.Resource.Org web site?

05:27:38

21

MR. KAPLAN:

22

THE WITNESS:

23
24
25

Objection.

Vague.

Yes.

BY MR. HUDIS:
Q.

Did you observe on Public.Resource's web

site any place where Public.Resource held itself

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out as making the materials posted on its site

05:27:51

2

accessible to the blind or print-disabled?

05:27:55

3

MR. KAPLAN:

4

THE WITNESS:

5

Objection.

Vague.

05:27:59

I did not.

05:28:02

BY MR. HUDIS:
Except for a placeholder noting the

05:28:04

7

voluntary takedown of the 1999 standards, you

05:28:05

8

could not locate this document on the

05:28:12

9

Public.Resource web site, correct?

05:28:14

6

Q.

05:28:03

10

MR. KAPLAN:

Objection.

11

THE WITNESS:

Correct.

12
13

Vague.

05:28:17
05:28:18

BY MR. HUDIS:
Q.

05:28:18

However, you did search for and access

05:28:18

14

other standards posted on the Public.Resource web

05:28:20

15

site?

05:28:22

16

MR. KAPLAN:

Objection.

17

THE WITNESS:

Correct.

18

Vague.

05:28:24
05:28:26

BY MR. HUDIS:

19

Q.

20

05:28:27

Mr. Malamud -- I did it again.

My

apologies.

05:28:32
Mr. Fruchterman, there were no sign-up

21

05:28:29

05:28:34

22

procedures in order for an Internet user to access

05:28:36

23

the content on the Public.Resource web site,

05:28:38

24

correct?

05:28:41

25

MR. KAPLAN:

Objection.

Vague.

Calls

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for speculation.

THE WITNESS:

2
3
4

Lacks foundation.

05:28:43

Correct.

05:28:46

BY MR. HUDIS:
Q.

05:28:46

During your review of Public.Resource's

05:28:51

5

web site, you were able to access standards

05:28:53

6

produced by other companies, such as the NFPA,

05:28:56

7

without restriction?

05:29:01

8

MR. KAPLAN:

9

THE WITNESS:

10
11

Objection.

Vague.

Yes.

05:29:08

BY MR. HUDIS:
Q.

05:29:04

05:29:08

There were no requirements that a user

05:29:10

12

be visually impaired to access these other

05:29:11

13

standards documents on Public.Resource's web site?

05:29:15

14

MR. KAPLAN:

Objection.

15

THE WITNESS:

Correct.

16
17

Vague.

BY MR. HUDIS:
Q.

05:29:19
05:29:20
05:29:20

Mr. Fruchterman, for the next series of

05:29:32

18

questions, I would like you to pull out

05:29:34

19

Exhibit 60, which was your supplemental

05:29:36

20

declaration from the HathiTrust litigation.

05:29:40

21

A.

Okay.

05:29:42

22

Q.

And I'd also like you to pull out

05:29:43

23

Exhibit 55, which is the materials we reviewed

05:29:47

24

from the Bookshare web site.

05:29:52

25

A.

Good.

Do I get to put the rest of them

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away?

05:30:02

2

Q.

Soon.

05:30:02

3

A.

Or are these the only two I need to have

05:30:03

4
5
6
7
8
9

out now?
Q.

05:30:05
Those are the only two you have to have

out now.
A.

05:30:09
Okay.

I have those two documents in

front of me, Exhibit 55 and 60.
Q.

05:30:07

Okay.

05:30:18
05:30:19

So I would like to focus your

05:30:25

10

attention on -- in the supplemental declaration,

05:30:25

11

Exhibit 60, to pages 2 and 3, where you talk about

05:30:28

12

the digital rights management plan.

05:30:33

13

A.

Yes.

14

Q.

Okay.

05:30:37
And similarly, an explanation of

15

the DRM plan on page 18 of Exhibit 55.

16

And that's

the Bookshare web site.

05:30:38
05:30:43
05:31:04

17

A.

Okay.

05:31:13

18

Q.

During your review of Public.Resource's

05:31:13

19

web site, how did their web site compare with the

05:31:16

20

Bookshare web site in terms of employing a digital

05:31:20

21

rights management or DRM plan to protect the

05:31:23

22

digital copies of standards posted on

05:31:27

23

Public.Resource's web site from unauthorized

05:31:30

24

copying?

05:31:35

25

MR. KAPLAN:

Objection.

Vague.

Calls

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for a legal conclusion.
THE WITNESS:

2
3

MR. HUDIS:

I didn't find a DRM plan

I'd like to take a break for

five minutes.

05:31:43
05:31:45
05:31:52
05:33:18

THE VIDEOGRAPHER:

6
7

05:31:36

in evidence on the Public.Resource.Org site.

4
5

Confusing.

Going off the record

at 5:33.

05:33:19
05:33:20

8

(Whereupon, a recess was taken.)

05:33:27

9

THE VIDEOGRAPHER:

05:39:35

Back on the record at

10

5:39.

05:39:37

11

BY MR. HUDIS:

05:39:38

12

Q.

Mr. Fruchterman, when you examined

05:39:40

13

Public.Resource's web site, you noticed a number

05:39:44

14

of standards that were hosted on that web site?

05:39:48

15

A.

Correct.
MR. KAPLAN:

16

05:39:58
Objection.

Vague.

Asked

05:39:59

17

and answered.

05:40:00

18

BY MR. HUDIS:

05:40:00

19

Q.

Did you notice any restrictions on the

05:40:01

20

ability of an Internet user to copy any of the

05:40:02

21

standards that you saw on Public.Resource's web

05:40:11

22

site?

05:40:13

23

MR. KAPLAN:

24

THE WITNESS:

Objection.

Vague.

No.

25
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2

BY MR. HUDIS:
Q.

05:40:17

Did you notice any restrictions on the

05:40:19

3

ability of an Internet user to download any of the

05:40:20

4

standards hosted on the Public.Resource's web

05:40:28

5

site?

05:40:31

6

MR. KAPLAN:

7

THE WITNESS:

8
9

Objection.

Vague.

No.

05:40:32

BY MR. HUDIS:
Q.

05:40:31

05:40:32

Did you notice any restrictions on the

05:40:32

10

ability of an Internet user to print any of the

05:40:35

11

standards hosted on the Public.Resource web site?

05:40:37

12

MR. KAPLAN:

13

THE WITNESS:

14

MR. HUDIS:

15

Vague.

No.

THE WITNESS:

17

MR. KAPLAN:

Thank you, Mr. Fruchterman.

Okay.

Thank you.

I have no questions at this

20

You get a chance, huh.

Okay.

THE VIDEOGRAPHER:

Oh, that's right.

05:40:52

05:40:53
05:40:54

This marks the end of

22

the deposition of James Fruchterman.

23

the record at 5:41.

25

05:40:46

05:40:53
THE WITNESS:

24

05:40:43
05:40:43

time.

19

21

05:40:40
05:40:41

That's all I have.

16

18

Objection.

Going off

(Whereupon, the deposition concluded
at 5:41 p.m.)

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