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)
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EXHIBIT Z
Case No. 1:14-cv-00857-TSC-DAR
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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: 888-433-3767
Fax: 888-503-3767
Email: transcripts@planetdepos.com
Internet:
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
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FOR THE DISTRICT OF COLUMBIA
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AMERICAN EDUCATIONAL RESEARCH
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ASSOCIATION, INC., ET AL.,
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7
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PLAINTIFF,
vs.
No.
1:14-CV-00857-TSC-DAR
PUBLIC.RESOURCE.ORG, INC.,
DEFENDANT.
_____________________________
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11
12
13
VIDEOTAPED DEPOSITION OF
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JAMES R. FRUCHTERMAN
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CONFIDENTIAL
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Tuesday, September 8, 2015
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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
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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,
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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,
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who, being by me first duly sworn, was thereupon
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examined as a witness in said action.
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CONTAINS CONFIDENTIAL INFORMATION
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Confidential Videotaped Deposition of James R. Fruchterman
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APPEARANCES OF COUNSEL
1
2
FOR THE PLAINTIFFS:
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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
(202) 372-9599
jon.hudis@quarles.com
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OBLON, MCCLELLAND, MAIER & NEUSTADT,
11
L.L.P.
12
BY:
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1940 Duke Street
14
Alexandria, Virginia
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Telephone:
16
E-mail:
17
KATHERINE D. CAPPAERT, ESQ.
22314
(703) 413-3000
Kcappaert@oblon.com
FOR THE DEFENDANT:
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FENWICK & WEST, LLP
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BY:
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555 California Street, 12th Floor
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San Francisco, California
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Telephone:
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E-mail:
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SEBASTIAN KAPLAN, ESQ.
94104
(415) 875-2477
skaplan@fenwick.com
ALSO PRESENT:
STEVE PATAPOFF, VIDEOGRAPHER
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1
INDEX
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INDEX OF EXAMINATIONS
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PAGE
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EXAMINATION BY MR. HUDIS ......................9
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AFTERNOON SESSION ...........................143
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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
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Copyrights of Calera
17
Recognition Systems,
18
Inc."
19
Exhibit 51
Spreadsheet entitled, .........50
20
"Patents and Trademarks
21
of RAF Technology, Inc."
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Exhibit 52
Document entitled, ............68
23
"Patents and Trademarks
24
of Arkenstone, Inc."
25
/ /
CONTAINS CONFIDENTIAL INFORMATION
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INDEX OF EXHIBITS (Continued)
1
2
EXHIBIT
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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,
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Inc."
12
Exhibit 55
Bookshare website
13
14
Screenshots from .............143
Exhibit 56
Document entitled, "The ......179
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Chafee Amendment:
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Improving Access to
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Information"
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Exhibit 57
Article entitled, ............185
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"Developing Information
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Technology to Meet Social
21
Needs"
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Exhibit 58
Document entitled, ...........190
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"Assistive Technology for
24
Visually Impaired and
25
Blind People"
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INDEX OF EXHIBITS (Continued)
1
2
EXHIBIT
3
Exhibit 59
DESCRIPTION
PAGE
Document entitled, ...........208
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"Declaration of James
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Fruchterman in Support of
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Motion For Summary
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Judgment"
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Exhibit 60
Document entitled, ...........208
"Supplemental Declaration
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10
of James Fruchterman In
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Support of Defendant
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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
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22
23
24
25
/ /
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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
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HathiTrust reported at
8
755 F.3d 87
9
Exhibit 63
Document entitled, "The ......241
10
Internet Archive's Open
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Library is violating
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authors' copyrights"
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Exhibit 64
Document entitled, ...........249
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"Expert Report of James
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R. Fruchterman"
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EXHIBITS PREVIOUSLY MARKED
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AND REFERRED TO IN THIS DEPOSITION
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EXHIBIT
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PAGE
Exhibit 34
304
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QUESTIONS WITNESS INSTRUCTED NOT TO ANSWER
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PAGE
LINE
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221
8
25
227
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September 8, 2015
P R O C E E D I N G S
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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
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Educational Research Association, Incorporated, et
09:20:49
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al., versus Public.Resource.Org, Incorporated, in
09:20:53
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the U.S. District Court of the District of
09:21:00
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Columbia, Case Number 1:14-CV-00857-TSC-DAR.
09:21:02
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Today's date is September 8th, 2015.
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Time on the video monitor is 9:21 a.m.
12
videographer today is Steve Patapoff representing
09:21:18
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Planet Depos.
09:21:21
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place at Fenwick & West, 801 California Street,
09:21:23
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Mountain View, California.
09:21:26
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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
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Fenwick & West, LLP, for defendant
09:21:49
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Public.Resource.Org, Incorporated.
09:21:52
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THE VIDEOGRAPHER:
Court reporter today
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09:21:56
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1
is Kathleen Wilkins representing Planet Depos.
Would the reporter please swear in the
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3
witness.
09:21:56
09:21:59
09:22:01
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JAMES R. FRUCHTERMAN,
09:22:11
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having been duly sworn,
09:22:11
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was examined and testified as follows:
09:22:11
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EXAMINATION BY MR. HUDIS
09:22:10
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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
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A.
My home address.
09:22:30
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Q.
Could I have your business address,
09:22:31
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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
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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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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
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because they never got started.
09:48:13
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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
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current, but under the control of electrical
09:48:28
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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
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their earthquake risks.
09:49:03
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the early '80s, when I was trying to get my first
09:49:08
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company really going.
09:49:11
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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
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be from other objects, and translating those into
09:49:49
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the letter or word equivalent so that those things
09:49:53
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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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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
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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
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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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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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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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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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1
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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1
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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205
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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206
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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1
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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1
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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1
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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1
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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05:27:44
05:27:46
05:27:46
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1
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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Confidential Videotaped Deposition of James R. Fruchterman
Conducted on September 8, 2015
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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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Case 1:14-cv-00857-TSC Document 60-30 Filed 12/21/15 Page 329 of 386
Confidential Videotaped Deposition of James R. Fruchterman
Conducted on September 8, 2015
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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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Case 1:14-cv-00857-TSC Document 60-30 Filed 12/21/15 Page 330 of 386
Confidential Videotaped Deposition of James R. Fruchterman
Conducted on September 8, 2015
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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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05:40:56
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