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 60-32 Filed 12/21/15 Page 1 of 144

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

Case 1:14-cv-00857-TSC Document 60-32 Filed 12/21/15 Page 2 of 144
Christopher Butler

December 2, 2014
San Francisco, CA

Page 1

1

UNITED STATES DISTRICT COURT

2
3

for the

4

DISTRICT OF COLUMBIA
____________________________
AMERICAN EDUCATIONAL
)

5

RESEARCH ASSOC., INC.,

)

6

et al.

)

7

Plaintiffs

8
9

)
)
)

v.

10

Civil Action No.:
1:14-cv-00857-TSC

)

11

PUBLIC.RESOURCE.ORG, INC.,

12

Defendant.
)
____________________________)

)

13
14

San Francisco, California

15

Tuesday, December 2, 2014

16

Videotaped deposition of CHRISTOPHER BUTLER,

17

a witness herein, called for examination by counsel

18

for Plaintiffs in the above-entitled matter, the

19

witness having been by me first duly sworn, taken

20

at the offices of Harvey Siskind, LLP, Four

21

Embarcadero Center, 39th Floor, San Francisco,

22

California at 9:10 a.m., on Tuesday, December 2,

23

2014, and the proceedings being taken down by

24

Stenotype by CINDY TUGAW, RPR, CSR and transcribed

25

under her direction.

Alderson Reporting Company
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Christopher Butler

December 2, 2014
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APPEARANCES:

2
3

On behalf of the Plaintiffs:

4

JONATHAN HUDIS, ESQ.

5

OBLON, SPIVAK, McCLELLAND, MAIER &

6

NEUSTADT, LLP

7

1940 Duke Street

8

Alexandria, Virginia

9

[phone]

22314

10
11

On behalf of the Defendant:

12

KATHLEEN LU, ESQ.

13

Fenwick & West, LLP

14

555 California Street, 12th Floor

15

San Francisco, California

16

[phone]

94104

17
18

On behalf of the Witness

19

STEPHANIE D. AHMAD, ESQ.

20

Greenberg Traurig, LLP

21

Four Embarcadero Center, Suite 3000

22

San Francisco, California

23

[phone]

94111

24
25

ALSO PRESENT:

Sean McGrath, Video Operator

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Case 1:14-cv-00857-TSC Document 60-32 Filed 12/21/15 Page 4 of 144
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C O N T E N T S

2

THE WITNESS

3

CHRISTOPHER BUTLER

4

PAGE

Examination by Mr. Hudis

5

5
6

E X H I B I T S

7

EXHIBIT NO.

8

Exhibit 1

9
10

PAGE
Subpoena to Testify at a

7

Deposition in a Civil Action
Exhibit 2

Subpoena to Produce Documents,

15

11

Information, or Objects or to Permit

12

Inspection of Premises in a Civil Action

13

Exhibit 3

Internet Archive Bios

23

14

Exhibit 4

Internet Archive About IA

31

15

Exhibit 5

Terms of Use 10 March 2001

41

16

Exhibit 6

Web pages for AERA57

57

17

Exhibit 7

Item History for

63

18

gov.law.aera.standards.1999

19

Exhibit 8

30 pages of task logs

67

20

Exhibit 9

Log for task 315793300

112

21

Exhibit 10

Internet Archive Error

120

22

Exhibit 11

Mac Terminal screen capture page

124

23

Exhibit 12

12/19/2013 E-mail from Carl Malamud

132

24
25

to Christopher Butler with attachments
---o0o---

Alderson Reporting Company
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VIDEO OPERATOR:

Good morning.

We're on

2

the video record, ladies and gentlemen, at 9:10

3

a.m.

4

Reporting in Washington, DC.

5

[phone].

I am Sean McGrath from Alderson Court
The phone number is

6

This is a matter pending before the United

7

States District Court for the District of Columbia,

8

in the case captioned, American Educational

9

Research Association, Incorporated, et al., versus

10

Public.Resource.Org, Inc., Case No.

11

1:14-cv-00857-TSC.

12

This is the beginning of disk 1, volume 1

13

of the deposition of Chris Butler on December 2nd,

14

2014.

15

San Francisco, California.

16

of the plaintiffs.

17
18
19
20
21
22
23
24
25

We're located at Four Embarcadero Center,
This is taken on behalf

Counsel, would you please identify
yourselves, starting with the questioning attorney.
MR. HUDIS:

Jonathan Hudis, representing

plaintiffs.
MS.LU:

Kathleen Lu, Fenwick & West, for

defendant Public Resource.
MS. AHMAD:

Stephanie Ahmad, Greenberg

Traurig, for non-party Internet Archive.
VIDEO OPERATOR:

Will the court reporter

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please swear in the witness and then you can

2

proceed.

3

CHRISTOPHER BUTLER,

4

being first duly affirmed by the Certified

5

Shorthand Reporter to tell the truth, the whole

6

truth, and nothing but the truth, testified as

7

follows:

8

EXAMINATION BY MR. HUDIS

9
10
11
12

MR. HUDIS:
Q.

Sir, if I could have your full name and

address for the record.
A.

Christopher Scott Butler.

And my address

13

is 152 Caine Avenue, Caine is spelled C-a-i-n-e, in

14

San Francisco, California 94112.

15

Q.

Mr. Butler, have you been deposed before?

16

A.

Yes.

17

Q.

In what kinds of matters?

18

A.

In matters relating to archived records of

19

websites that Internet Archive has preserved and

20

maintained on its site.

21

party.

22
23

Q.

I was deposed as a third

And how many such times have you been

deposed in that capacity?

24

A.

If I remember correctly, it's five times.

25

Q.

Other than those five times being deposed

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follow up with any necessary communication

2

thereafter.

3
4

Q.

And so if a take-down request meets

certain criteria, what criteria would that be?

5

MS. LU:

6

MR. HUDIS:

Objection as to relevance.

7

Q.

You may answer.

8

A.

Sure.

9

I hadn't understood that the scope

of the subpoena would include this information.

10

but there can be take-down requests on -- on

11

various grounds, so the criteria would be specific

12

to -- to sometimes even the particular case, but

13

the most basic example is a complaint of -- of

14

copyright infringement brought to our attention on

15

the site.

16

And we would ask for a take-down notice

17

with the standard information requested as outlined

18

in the Digital Millennium Copyright Act.

19

meets that criteria, we will typically take down

20

the item, notify both the uploading party and the

21

requesting party.

22
23

Q.

And if it

And what about your being the point of

contact for information requests from attorneys?

24

MS. LU:

25

MR. HUDIS:

Objection as to relevance.

Alderson Reporting Company
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Q.

You may answer.

2

A.

The most common example of that is an

3

attorney who is interested in using archived

4

material from our web archive in one of their cases

5

and would like to have those records authenticated

6

by Internet Archive.

7

Q.

And as point of contact, you were also

8

part of Internet Archive's compliance with document

9

subpoenas such as the one we served on Internet

10

Archive?

11

A.

That's correct.

12

Q.

Have you told me all of your

13

responsibilities as office manager for Internet

14

Archive?

15

A.

Yes.

16

MR. HUDIS:

17

VIDEO OPERATOR:

18

Off the record.
The time is 9:51 a.m.,

and we are off the record.

19

(Discussion off the record.)

20

VIDEO OPERATOR:

21

The time is 9:52 a.m.,

and we are on the record.

22

(Plaintiffs' Exhibit 4 marked for

23

identification.)

24

MR. HUDIS:

25

Q.

Mr. Butler, what is the Internet Archive?

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A.

Internet Archive is a nonprofit

2

organization.

3

digital library online at our website, archive.org.

4

We preserve many types of media and make much of

5

that media available in digital format via our

6

website, archive.org, and also openlibrary.org.

7

Q.

We are attempting to maintain a

Mr. Butler, do you recognize what I now

8

have marked as deposition Exhibit 4 as a portion of

9

Internet Archive's website?

10

A.

Yes.

11

Q.

And it's the About page?

12

A.

Yes.

13

Q.

And the first paragraph up at the top

14

right beneath "About the Internet Archive," it

15

says, "The Internet Archive is a 501(c) non-profit

16

that was founded to build an Internet library.

17

purposes include offering permanent access for

18

researchers, historians, scholars, people with

19

disabilities, and the general public to historical

20

collections that exist in digital format.

21

Do you see that?

22

A.

Yes.

23

Q.

Is that an accurate description of

24
25

Internet Archive's mission and business?
A.

Yes.

Alderson Reporting Company
1-800-FOR-DEPO

Its

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Q.

And it says below that, in the end of the

2

second paragraph, "the Internet Archive includes

3

text, audio, moving pictures" -- "moving images,

4

and software as well as archived web pages in our

5

collections."

6

Do you see that?

7

A.

Yes.

8

Q.

And that's a part of the business of

9

Internet Archive?

10

A.

Yes.

11

Q.

All right.

12

of Exhibit 4, please.

13

If you would go to Page 5 of 5

exhibit.

14
15

It's the last page of the

Do you see the descriptive text under
where it says, "Storage"?

16

A.

Yes.

17

Q.

And it says, "Storing the Archive's

18

collections involves parsing, indexing, and

19

physically encoding the data.

20

collections growing at exponential rates, this task

21

poses an ongoing challenge."

22
23

With the Internet

Is this part of the business of Internet
Archive storage as it's described here?

24

A.

Yes.

25

Q.

And then immediately below that, there is

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a descriptive text under the title, "Preservation,"

2

do you see that?

3

A.

Yes.

4

Q.

And it says there, "Preservation is the

5

ongoing test of permanently protecting stored

6

resources from damage or destruction.

7

issues are guarding against the consequences of

8

accidents and data degradation and maintaining the

9

accessibility of data as formats become obsolete."

10
11

The main

Is that part of the mission and business
of Internet Archive?

12

A.

Yes.

13

Q.

Mr. Butler, what is an Internet library?

14

A.

From our standpoint, as I understand

15

Internet library, it would be an organization that

16

offers library services, including access to -- to

17

the types of resources on Internet Archive texts,

18

movies, audio, software, information and artwork

19

and literature and scientific data.

20

available for the public benefit.

21
22
23
24
25

Q.

It makes it

Have you completely described what you

believe to be an Internet library?
A.

That's -- that's my definition in a

nutshell.
Q.

At the Internet Archive, what is a

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2

collection?
A.

A collection is roughly defined as a set

3

of posted items.

4

page beginning with archive.org/details and ending

5

in an identifier.

6

type such as text, movie, audio.

7

could be uploaded to that page.

8

assigned a title.

9

submitted by the uploader of the item.

An item would be defined as a

It would be assigned a media
Multiple files
It would be

And perhaps other metadata

10

A collection would be a list of items that

11

is associated with a separate landing page, its own

12

summary page where a visitor could -- can see

13

summary information about that list of items.

14

often organized around a theme.

15

It's

Some of the functions of a collection

16

include being able to search within just that list

17

of items, being able to sort those items, for

18

example, sorting them by title, alphabetically or

19

by author.

20

A collection is generally set up for any

21

archive.com user who contacts Internet Archive.

22

And generally we ask that they have uploaded

23

50 items to the site already that we can then form

24

into a collection and assign a collection page.

25

Q.

Have you described the entirety of what

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you believe is a collection?

2

MS. LU:

3

MR. HUDIS:

Objection, argumentative.

4

Q.

Did you leave anything out?

5

A.

I don't think of anything offhand.

6

Q.

How does Internet Archive build an

7
8
9
10

Internet library?
A.

Through multiple ways.

Our web archive is

collected both by Internet Archive and by outside
organizations that donate data to Internet Archive.

11

Q.

Let's take that separately.

12

A.

Okay.

13

Q.

What part of building Internet Archive's

14
15
16
17
18
19

library is done by Internet Archive itself?
A.

Much of the web archive is -- is crawled

and collected by Internet Archive directly.
Q.

So that we have a good record, what do you

mean by "crawled and collected"?
A.

I mean that automated programs operated by

20

Internet Archive visit web pages and store web

21

files that are transmitted to Internet Archive by

22

the web servers that they visit.

23

is then processed in such a way that it's rendered

24

searchable and browseable by visitors to the

25

website.

That information

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Q.

And the searchable and browseable

2

functions, that's done by Internet Archive's web

3

engineers?

4

A.

Correct.

5

Q.

And I believe the other way you said that

6

Internet Archive builds Internet library is by

7

donations of content by outside organizations?

8

A.

Correct.

9

Q.

How does that work?

10

A.

So in the instance of the web archive

11

organizations, the biggest one of which is Alexa

12

Internet, who regularly perform web crawling, would

13

donate bulk data of historical web files to

14

Internet Archive to be incorporated into the

15

Wayback Machine.

16
17

Q.

donate content to the Internet Archive?

18
19

MS. LU:

22
23

Objection, misstates prior

testimony.

20
21

And are there other organizations that

MR. HUDIS:
Q.

Are there any other organizations that

donate content to the Internet Archive?
A.

Yes.

So private individuals and

24

institutions may establish a user account with

25

archive.org and post material in the movies, texts,

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1
2

audio and software collections.
Q.

How many individuals or organizations have

3

established user accounts for uploading purposes to

4

Internet Archive?

5

of thousands?

6
7

A.

At a minimum, thousands, perhaps tens of

thousands, perhaps hundreds of thousands.

8
9

Tens, hundreds, thousands, tens

MS. LU:

I'll object that this is outside

the scope of the deposition topics.

10

MR. HUDIS:

I would disagree, Counsel.

11

Q.

12

answer?

13

A.

I am.

14

Q.

Have you described all the ways that

You may go.

Are you finished with your

15

Internet Archive builds its collections or builds

16

its libraries, to be correct?

17
18

A.

Internet Archive may also digitize text

materials or other materials.

19

Q.

Is this printed text materials?

20

A.

Yes.

21

Q.

You may go on.

22

A.

Yes.

23
24
25

Typically, those are supplied by

libraries and state agencies.
Q.

So the three ways that Internet Archive

can build a library is Internet Archive's own

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crawling and archiving, donations by outside

2

organizations, and digitization of text materials

3

donated by libraries and state agencies, correct?

4
5

MS. LU:

Objection, misstates prior

testimony.

6

MR. HUDIS:

I disagree.

7

Q.

Go on.

8

A.

I would also add that private individuals

9
10
11
12
13

You may answer.

can digitize materials themselves and upload them
to our service.
Q.

Have you told me all the different ways

that Internet Archive can build its libraries?
A.

Again, I think that's -- that's a fair

14

nutshell description.

15

specific to add.

16
17

Q.

So we have some definitions of terms, what

does it mean to post content to a website?

18
19

I don't think of anything

MS. LU:

Objection to the extent it calls

for expert testimony.

20

MR. HUDIS:

21

Q.

Do you understand the question?

22

A.

Yes.

In the basic sense, I understand it

23

to -- to be something that an individual or an

24

automated program does to -- to transmit content to

25

a website.

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Q.

Is that otherwise known as uploading?

2

A.

I think that the two terms are used

3

interchangeably a lot.

4

MS. AHMAD:

Can we take a break?

5

MR. HUDIS:

Yes.

6

VIDEO OPERATOR:

7

The time is 10:04 a.m.,

and we are off the record.

8

(Brief recess.)

9

VIDEO OPERATOR:

10

and we are on the record.

11
12

The time is 10:11 a.m.,

MR. HUDIS:
Q.

Mr. Butler, just so we have a frame of

13

reference, individuals not employed by Internet

14

Archive are allowed to post content to Internet

15

Archive's website?

16

A.

That's correct.

17

Q.

And I believe we discussed people who have

18

such posting or uploading access could be anywhere

19

in the thousands to hundreds of thousands?

20

A.

Correct.

21

Q.

And why are these nonemployee individuals

22

allowed to post content to Internet Archive's

23

website?

24
25

MS. AHMAD:

Objection, outside the scope

of the deposition topics.

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MR. HUDIS:

2

Q.

You may answer.

3

A.

One of the reasons why is to enable

4

sharing of information and to -- to expand the

5

amount of materials that's available for public use

6

and sharing at archive.org.

7

MR. HUDIS:

8

VIDEO OPERATOR:

9

Off the record.
The time is 10:12 a.m.,

and we are off the record.

10

(Discussion off the record.)

11

(Plaintiffs' Exhibit 5 marked for

12

identification.)

13

VIDEO OPERATOR:

14

The time is 10:13 a.m.

We are on the record.

15

MR. HUDIS:

We've now marked as Exhibit 5

16

a document which says at the top, "Terms of Use

17

10 March 2001," bearing production numbers IA-AERA

18

38 through 40.

19
20

Counsel for Internet Archive, can you
stipulate this is a business record of your client?

21

MS. AHMAD:

Yes.

22

MR. HUDIS:

Any objections, Ms. Lu?

23

MS. LU:

24

MR. HUDIS:

25

Q.

No objection.

Mr. Butler, do you recognize this document

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of Exhibit 5?

2

A.

Yes.

3

Q.

What is it?

4

A.

This is the Internet Archive's terms of

Q.

And to what activity associated with

5
6
7

use.

Internet Archive are these terms of use applied?

8

MS. LU:

9

MR. HUDIS:

10
11
12

Q.

Objection, vague and ambiguous.

You may answer if you understand the

question.
A.

Use of the website both by individuals who

13

establish an account and also by users who visit

14

the website without establishing an account.

15

Q.

So if I understand your answer, and if I'm

16

wrong, correct me, if I'm an individual or an

17

outside organization, not employed with Internet

18

Archive, who wants to post content to Internet

19

Archive's website, I would have to comply with

20

these terms of use, is that correct?

21

A.

22
23

MS. LU:

Objection, misstates prior

testimony.

24
25

Yes.

MR. HUDIS:
Q.

You may answer.

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and location structure of materials posted to its

2

website by submitters?

3

MS. LU:

4

THE WITNESS:

5

Can you reread the question,

please?

6
7

Objection, vague and ambiguous.

MR. HUDIS:
Q.

Does Internet Archive control the URL name

8

or location structure of materials posted to

9

Internet Archive's website by submitters?

10
11
12
13
14
15
16

MS. LU:

Objection, lack of personal

knowledge.
MS. AHMAD:

Objection, vague as to

"control."
MR. HUDIS:

Q.

I'll give you an example

of what I mean.
In our subpoena of Exhibit 1, deposition

17

subpoena, Exhibit A-1 to deposition Exhibit 1, has

18

a URL associated with the posting of the

19

1999 standards to Internet Archive's website and it

20

reads as follows --

21

MS. LU:

22

I'm afraid this might be a little

23
24
25

What page are you on, Jonathan?

confusing for the record.
MR. HUDIS:
the record:

And I will read the URL into

https://archive.org/details/gov.law.

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1
2

aera.standards.1999."
Q.

Mr. Butler, when the material posted to

3

Internet Archive's website on Exhibit A-1 of

4

deposition Exhibit 1 was put there, who created the

5

name of this URL at the bottom left-hand corner?

6
7

MS. LU:

and lack of personal knowledge.

8
9

Objection, vague and ambiguous

THE WITNESS:

The prefix

"archive.org/details" is the default URL prefix

10

assigned by the archive.org website.

The following

11

text is what we call the identifier.

That is

12

something that is submitted by the submitter.

13
14

MR. HUDIS:
Q.

Mr. Butler, to the best of your knowledge,

15

what is Public.Resource.Org, Inc., which I will

16

refer to for the rest of this deposition as Public

17

Resource?

18
19

MS. LU:

Objection, lack of personal

knowledge.

20

MR. HUDIS:

21

Q.

You may answer to the extent you know.

22

A.

What I know about Public.Resource.Org is

23

that it makes available government documents to the

24

public, and that's part of its mission.

25

Q.

And how do you know about Public Resource?

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1
2
3
4

A.

I know about Public.Resource.Org through

their posting of material on archive.org.
Q.

That's the other name of Internet

Archive's website?

5

A.

That's correct.

6

Q.

What else, if anything, do you know about

7

Public Resource?

8
9

MS. AHMAD:
ambiguous.

10
11

Objection, vague and

MR. HUDIS:
Q.

Other than its posting of what you call

12

government documents on internetarchive.org's

13

website, what else, if anything, do you know about

14

Public Resource?

15
16

A.

I believe that that -- that generally

covers what I know about Public Resource.

17

Q.

Do you know Carl Malamud?

18

A.

Yes.

19

Q.

How do you know him?

20

A.

I've met him on brief occasion when he was

21
22
23
24
25

at Internet Archive.
Q.

And why did Carl Malamud visit Internet

Archive?
MS. LU:

Objection, lack of personal

knowledge.

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THE WITNESS:

The instance when I met him,

2

he was speaking at a public function that Internet

3

Archive was hosting.

4

Aaron Swartz.

5
6

It was a memorial service for

MR. HUDIS:
Q.

Who was Aaron Swartz?

7

MS. LU:

8

THE WITNESS:

9

Aaron Swartz was a public

figure and former employee of Internet Archive.

10
11

Objection, relevance.

MR. HUDIS:
Q.

Other than speaking at this memorial

12

function, do you remember any other times that

13

Mr. Malamud visited Internet Archive when you were

14

present?

15
16

A.

Yes.

Perhaps a total of four or five

times.

17

Q.

What were the purpose of those visits?

18

A.

I don't know.

19

Q.

Did he make any speeches other than the

20

one at the memorial service?

21
22

MS. LU:

Objection, lack of personal

knowledge.

23

THE WITNESS:

24

MR. HUDIS:

25

Q.

I'm not aware of any.

Do you know what the nature of his

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meetings at Internet Archive was those other four

2

or five times?

3

A.

No.

4

Q.

What else do you know about Mr. Malamud?

5
6

MS. AHMAD:

Objection, outside the scope

of the deposition topics.

7

MR. HUDIS:

8

Q.

You may answer.

9

A.

I know he's involved with Public Resource.

10

Q.

That was my next question.

11
12
13

What, if anything, do you know about
Mr. Malamud's relationship to Public Resource?
A.

As I understand it, he -- he's very

14

central at Public Resource.

15

title and responsibilities at the organization.

16

Q.

I don't know his exact

Is that the extent of your knowledge of

17

the relationship between Mr. Malamud and Public

18

Resource?

19

A.

Yes.

20

Q.

Is Public Resource allowed to post content

21

to Internet Archive's website?

22

A.

Yes.

23

Q.

Is Carl Malamud allowed to post content

24
25

into Internet Archive's website?
A.

Yes.

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1

MS. LU:

2

MR. HUDIS:

3
4

Q.

Objection, vague and ambiguous.

When was Public Resource given access to

publish content to Internet Archive's website?

5

MS. LU:

6

THE WITNESS:

7

MR. HUDIS:

8
9

Q.

I don't know.

When was Carl Malamud given access to post

content to Internet Archive's website?

10
11

Vague and ambiguous.

MS. LU:

Lack of personal knowledge, vague

and ambiguous.

12

MR. HUDIS:

13

Q.

You may answer.

14

A.

I don't know.

15

Q.

Is there a formal agreement between

16

Internet Archive and Public Resource that

17

memorializes, if there is one, posting rights to

18

the Internet Archive website?

19
20

MS. LU:

Objection, lack of personal

knowledge, assumes facts not in evidence.

21

MR. HUDIS:

22

Q.

You may answer.

23

A.

If a -- if a user account was set up

24

through the -- through the site and our terms of

25

use were agreed to, then our terms of use would

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fall under that description.

2

other agreements.

3

Q.

I'm not aware of any

Do you know whether the terms of use were

4

agreed to by Public Resource or Carl Malamud or

5

both?

6
7

MS. LU:

Objection, lack of personal

knowledge, assumes facts not in evidence.

8

MR. HUDIS:

9

Q.

You may answer if you know.

10

A.

I don't know.

11

Q.

Other than the terms of use of Exhibit 5,

12

you said there was no formal agreement between

13

Public Resource or Carl Malamud and Internet

14

Archive for posting rights.

15

Was there any informal agreement?

16

MS. LU:

17

Objection, misstates prior

testimony.

18

MR. HUDIS:

19

Q.

You may answer.

20

A.

Can you define "posting rights"?

21

Q.

Permission to upload content to Internet

22
23

Archive's website.
A.

I'm not aware of any.

24

MR. HUDIS:

25

VIDEO OPERATOR:

Off the record.
The time is 10:33 a.m.

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We are off the record.

2

(Discussion off the record.)

3

(Plaintiffs' Exhibit 6 marked for

4

identification.)

5

VIDEO OPERATOR:

6

The time is 10:41 a.m.

We are on the record.

7

Mr. HUDIS:

I've now marked as Exhibit 6 a

8

web page with different views which I will discuss

9

with the witness in a moment.

10

eight pages.

11

Q.

It's a total of

Mr. Butler, what we did -- it's on the

12

date stamped up in the upper left-hand corner,

13

March 14, 2014.

14

The way that we understand the material

15

which we call the 1999 standards was uploaded to

16

Internet Archive's website.

17

frame here, showing the witness, has the ability so

18

that electronically you read it like a book.

19

The material in this

So we took a first shot of the web page

20

with the first page of the '99 standards, and then

21

the second page which is the front cover of the

22

'99 standards, and then we took another shot,

23

screenshot, of the inside cover and copyright page,

24

and then finally the table of contents.

25

Do you see that?

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1

A.

Yes.

2

Q.

So these are, in fact, different shots of

3

the same page with different turns, electronically,

4

of the book.

5

Do you understand that?

6

A.

I understand.

7

Q.

Okay.

8
9
10

So --

MS. AHMAD:

Yes.

So you should answer

questions about this exhibit assuming that that
description is accurate.

11

THE WITNESS:

12

MR. HUDIS:

13

Q.

I understand.

Mr. Butler, do you recognize Exhibit 6 as

14

a web page from Internet Archive's website that

15

existed at one time?

16
17

MS. LU:

Objection, lack of personal

knowledge.

18

THE WITNESS:

19

Internet Archive details page.

20

the layout and design of an Internet Archive

21

details page.

22
23
24
25

This has the layout of an
I recognize it as

MR. HUDIS:
Q.

Do you know what material is posted on

this web page of Exhibit 6?
MS. LU:

Objection, lack of personal

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knowledge.

2
3

THE WITNESS:

I see a title for the

material.

4

MR. HUDIS:

5

Q.

What title is that?

6

A.

The title is "AERA:

Standard for

7

Educational and Psychological Testing," and then

8

there's a date in parentheses following that,

9

"1999."

10

Q.

According to this exhibit, the bottom of

11

the second page, who posted the 1999 standards to

12

this web page?

13
14
15

MS. LU:

Objection, lack of personal

knowledge.
THE WITNESS:

On the -- on the second

16

page, I see a metadata tag entitled, "Credits" that

17

reads "Uploaded by Public.Resource.Org.

18

As I understand the function of our

19

website, the submitter would have submitted that

20

tag and the text displayed beside it, reading

21

"Uploaded by Public.Resource.Org."

22

MR. HUDIS:

Counsel, can you stipulate

23

that Exhibit 6 is a business record of Internet

24

Archive that existed at one time, at least on

25

March 14th, 2014?

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MS. AHMAD:

2

MR. HUDIS:

3
4

Q.

No, I can't.

On the second page of Exhibit 6, it says,

"Identifier-access."

5

Do you see that?

6

A.

Yes.

7

Q.

Based upon your knowledge of an Internet

8

Archive details page, who created this identifier

9

access string?

10
11

MS. LU:

Objection, vague and ambiguous,

lack of personal knowledge.

12

MR. HUDIS:

13

Q.

You may answer.

14

A.

I don't know.

I don't know whether a

15

submitter would have created that or whether the

16

Internet Archive's automated processes created it.

17
18

Q.

the other?

19
20

To the best of your knowledge it's one or

MS. LU:

Objection, lack of personal

knowledge.

21

THE WITNESS:

To the best of my knowledge,

22

it would either have been performed by Internet

23

Archive's automated processes or an account holder

24

with requisite permission to edit this item's

25

metadata.

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MR. HUDIS:

2

Q.

To the best of your knowledge, if you

3

could look on Page 1, beneath the -- beneath the

4

frame containing the 1999 standards, who wrote the

5

text under where it says, "Description"?

6
7

MS. LU:
knowledge.

8
9

Objection, lack of personal

THE WITNESS:

The service requires a

description to be provided by the submitter at the

10

time of upload.

11

be edited by an account that has permissions to do

12

so.

13
14
15

MR. HUDIS:
Q.

MS. LU:

THE WITNESS:

Sorry, could you repeat the

question, please?

20
21

Objection, lack of personal

knowledge and argumentative.

18
19

And in this context, that account would

have been by Public.Resource.Org?

16
17

That information may subsequently

MR. HUDIS:
Q.

Yes,

yes.

22

Is it correct to say that the text on this

23

web page of Exhibit 6, beneath the frame containing

24

the 1999 standards, was provided by the submitter?

25

MS. LU:

Objection, lack of personal

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knowledge, vague and ambiguous.

2

THE WITNESS:

In the instance of the item

3

with this identifier, our records show that the

4

description was provided by the submitter.

5
6
7

MR. HUDIS:
Q.

knowledge, looking at this exhibit?

8
9

Who was the submitter, to the best of your

MS. LU:

Objection, lack of personal

knowledge, vague and ambiguous.

10

THE WITNESS:

Our records list an account,

11

a user account, as the submitter for this -- for

12

the item with this identifier.

13
14

MR. HUDIS:
Q.

15
16

And do you know whose account that is?
MS. LU:

Objection, lack of personal

knowledge, vague and ambiguous.

17

THE WITNESS:

The -- I know that the user

18

account is associated with an e-mail address which

19

is [e-mail].

20
21

MR. HUDIS:
Q.

Do you know whether [e-mail] is Carl

22

Malamud's e-mail address?

23

MS. LU:

24
25

Objection, lack of personal

knowledge.
THE WITNESS:

I recognize that e-mail

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address as Carl Malamud's e-mail address.

2
3
4

MR. HUDIS:
Q.

At the bottom of Page 1 of Exhibit 6, it

says, "Downloaded 1,113 times."

5

What does that downloaded number reflect?

6

MS. LU:

7

knowledge.

8
9

Objection, lack of personal

THE WITNESS:

That number, the -- the

downloaded number?

10

MR. HUDIS:

11

Q.

Yes.

12

A.

Is the same as the download account to

13

which we referred earlier today.

14

MR. HUDIS:

15

VIDEO OPERATOR:

16

Off the record.
The time is 10:50 a.m.,

and we are off the record.

17

(Discussion off the record.)

18

(Plaintiffs' Exhibit 7 marked for

19

identification.)

20

VIDEO OPERATOR:

21

and we are on the record.

22
23

The time is 10:52 a.m.,

MR. HUDIS:
Q.

I've marked as deposition Exhibit 7 a

24

document that is a single page entitled, "Item

25

History for gov.law.aera.standards.1999."

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MS. LU:

2

MR. HUDIS:

3

MS. LU:

4

Can you say that again?
Okay, I'll do it again.

Jonathan, if you could repeat the

Bates number on that.

5

MR. HUDIS:

6

It's a document that's named at the top,

Sure.

I'll do both.

7

"Item History for gov.law.aera.standards.1999."

8

Bears production number IA-AERA-036.

9

Q.

Mr. Butler, I'll show you again what's

10

been marked as Exhibit 2 which is the document

11

subpoena.

12

minute.

13

A.

Okay.

14

Q.

Thank you, Mr. Butler.

15

Please look at items 1 through 4 for a

In order to comply with the document

16

subpoena, or Exhibit 2, who at Internet Archive

17

searched your company's records to determine how

18

the 1999 standards were posted to the Internet

19

Archive's website?

20
21

MS. LU:

Objection, assumes facts not in

evidence and argumentative.

22

MR. HUDIS:

23

Q.

You may answer.

24

A.

Would you read that for me, please?

25

Q.

Sure.

In order to comply with our

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document subpoena of Exhibit 2, you've read items 1

2

through 4.

3

Who at Internet Archive searched your

4

company's records to determine how the

5

1999 standards were posted to your company's

6

website?

7

A.

I did.

8

Q.

Mr. Butler, I now show you Exhibit 7 and

9

ask you if you recognize the document.

10

A.

Yes.

11

Q.

What is it?

12

A.

This document is a history showing a

13

summary of all of the technical tasks submitted for

14

the item with the identifier gov.law.aera.

15

standards.1999.

16
17
18
19

Q.

And how is the results of that search in

any way related to the content of Exhibit 6?
MS. LU:

Objection, lack of personal

knowledge.

20

THE WITNESS:

21

MR. HUDIS:

22

MS. LU:

This is Exhibit 6?
Yes.

Let the record reflect the

23

witness was pointing to what I believe is Page 2 of

24

8 of Exhibit 6.

25

MR. HUDIS:

Yes.

It's my copy.

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1
2

THE WITNESS:
question, please?

3
4

And would you repeat

MR. HUDIS:
Q.

5

Yes.

And I will state it a different way.

Is Exhibit 7 the results of a search to

6

determine who posted the content on the web page of

7

Exhibit 6?

8
9

MS. LU:

Objection, lack of personal

knowledge.

10

THE WITNESS:

The Exhibit 7 is a result of

11

a search to determine who posted the item

12

associated with the URL listed on the printout for

13

Exhibit 6.

14
15

MR. HUDIS:
Q.

And what was the results of that search?

16

MS. LU:

17

THE WITNESS:

18

Objection, vague and ambiguous.
One document located was

the -- the item history that is Exhibit 7.

19

MR. HUDIS:

Counsel for Internet Archive,

20

can you stipulate that Exhibit 7 is a business

21

record of Internet Archive?

22

MS. AHMAD:

23

MS. LU:

24

MR. HUDIS:

25

Q.

Yes.

No objection.
No objection, okay.

And you performed the search, the results

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1
2
3

of which are reflected as Exhibit 7?
A.

Yes, I -- I clicked the link to get to

this history page.

4

MR. HUDIS:

5

VIDEO OPERATOR:

6

Off the record.
The time is 10:57 a.m.,

and we are off the record.

7

(Discussion off the record.)

8

(Plaintiffs' Exhibit 8 marked for

9

identification.)

10
11

VIDEO OPERATOR:

The time is 10:59 a.m.,

and we are on the record.

12

MR. HUDIS:

I now mark as Exhibit 8 a

13

multipage document bearing the production numbers

14

IA-AERA 5 through 34.

15

MS. LU:

And I'll just state for the

16

record that it appears to me that this is actually

17

several documents that were produced consecutively

18

and now are entered as one exhibit together.

19

that --

20
21
22

MR. HUDIS:
Q.

Is

That is correct, Counsel.

Mr. Butler, do you recognize the

collection of documents now marked as Exhibit 8?

23

A.

Yes.

24

Q.

What are they?

25

A.

These documents are the logs for -- for

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the tasks that are summarized in the item history.

2

They represent the technical tasks submitted for

3

the item with identifier gov.law.aera.standards

4

.1999.

5

Q.

Is it correct to say that the search

6

summary of Exhibit 7 resulted in retrieval of the

7

logs of Exhibit 8?

8

MS. LU:

9

THE WITNESS:

Objection, vague and ambiguous.
I was able to access the

10

logs of Exhibit 8 through hyperlinks that were

11

available on the page for Exhibit 7.

12

MR. HUDIS:

Counsel, can you stipulate

13

that Exhibit 8 is a collection of the business

14

records of Internet Archive?

15

MS. AHMAD:

Yes.

16

MR. HUDIS:

Any objection, Counsel?

17

MS. LU:

18

MR. HUDIS:

19

Q.

No objection.

Mr. Butler, how does -- how long does

20

Internet Archive maintain logs of the type shown in

21

Exhibit 8?

22
23
24
25

MS. LU:

Objection, lack of personal

knowledge.
THE WITNESS:

As a general practice, these

logs are not deleted unless the item itself is

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deleted.

2

MR. HUDIS:

3

Q.

4

do you mean?

And when you say "the item itself," what

5

MS. LU:

6

MR. HUDIS:

7

Q.

8
9

Objection, vague and ambiguous.

Do you mean the item of Exhibit 6?
MS. LU:

Objection, vague and ambiguous,

argumentative.

10

THE WITNESS:

By "item," I mean the -- the

11

collection of files and metadata that are posted

12

associated with a URL archive.org/details/ the

13

identifier.

14
15

MR. HUDIS:
Q.

And you were able to retrieve these logs

16

of Exhibit 8 associated with the identifier

17

gov.law.aera.standards.1999?

18

A.

That's correct.

19

Q.

So the item has not yet been deleted from

20

Internet Archive's website?

21

MS. LU:

22

MR. HUDIS:

Objection, vague and ambiguous.

23

Q.

You may answer.

24

A.

That's correct.

25

Q.

From where did you gather the logs of

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1
2

Exhibit 8?
A.

The logs of Exhibit 8 were gathered from

3

Internet Archive's servers that serve the site

4

archive.org.

5

Q.

6

servers?

7
8

Who at Internet Archive maintains those

MS. LU:

Objection, lack of personal

knowledge.

9

MR. HUDIS:

10

Q.

If you know.

11

A.

Internet Archive's engineers maintain

12
13

those servers.
Q.

14
15

MS. LU:

THE WITNESS:

Internet Archive's

engineers.

18
19

Objection, lack of personal

knowledge.

16
17

Who has access to those servers?

MR. HUDIS:
Q.

Internet engineers?

20

MS. LU:

21

MR. HUDIS:

22
23
24
25

Q.

Objection.

What type of engineers have access to

these servers?
MS. LU:

Objection, lack of personal

knowledge, and vague and ambiguous.

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1

MR. HUDIS:

2

Q.

You may answer.

3

A.

Internet Archive's Petabox team is the

4

name of the team.

5

Q.

Could you spell Petabox?

6

A.

Yes.

7

Q.

And who comprises Internet Archive's

8
9

P-e-t-a-b-o-x.

Petabox team?
A.

Several engineers who work with data

10

clusters, physical hardware and also support the --

11

the back end of Internet Archive, of the

12

archive.org website.

13

Q.

So, generally, the Petabox team is

14

comprised of computer hardware and software

15

engineers?

16

A.

That's correct.

17

Q.

What tool was used to extract these logs

18

of Exhibit 8?

19
20

MS. LU:
knowledge.

21
22

THE WITNESS:

25

I obtained these records

through the web browser Firefox.

23
24

Objection, lack of personal

MR. HUDIS:
Q.

And through the Firefox web browser, did

you use the Mac Terminal application?

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2

MS. LU:

Misstates prior testimony.

3
4

Objection, incomprehensible.
Facts not in evidence.

MR. HUDIS:
Q.

Besides the Firefox web browser, what

5

other tools, if any, did you use to procure the

6

logs of Exhibit 8?

7
8

MS. LU:

Objection, lack of personal

knowledge.

9

THE WITNESS:

The -- I used the Firefox

10

web browser with the site archive.org to -- to

11

obtain these -- these records from archive.org's

12

records of the task history of the item.

13

MR. HUDIS:

14

Q.

And the task history is Exhibit 7?

15

A.

Yes, the -- the summary is Exhibit 7 and

16
17
18

then the specific tasks are Exhibit 8.
Q.

[e-mail]."

19
20

Now, in Exhibit 7, it says, "submitter

You associate that -- that e-mail address
with Carl Malamud?

21

A.

Yes.

22

Q.

Looking at the logs of Exhibit 8, at the

23

top of each grouping of pages, first grouping is

24

three pages, the second grouping is thirteen pages,

25

the third grouping is two pages, the fourth

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grouping is three pages, the fifth grouping is two

2

pages, the sixth grouping is five pages, and the

3

final grouping is two pages.

4
5

Each one of them has a task ID at the
upper left-hand corner.

Do you see that?

6

A.

Yes.

7

Q.

How did you determine which tasks to

8

search for?

9
10

MS. LU:

Objection, misstates prior

testimony.

11

THE WITNESS:

I obtained the task -- the

12

task logs by selecting the hyperlink for each task

13

under "task id" on Exhibit 7.

14
15

MR. HUDIS:
Q.

Now, each of these documents of Exhibit 8

16

includes a line that states, "submitter

17

[e-mail]."

18
19

This is the e-mail associated with Carl
Malamud?

20

A.

Yes.

21

Q.

And Mr. Malamud has access to Internet

22
23
24
25

Archive's system by a user name and password?
MS. LU:

Objection, lack of personal

knowledge.
THE WITNESS:

Yes, I understand this

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account to be associated with Carl Malamud.

2
3
4

MR. HUDIS:
Q.

for upload purposes by a user name and password?

5
6

MS. LU:

THE WITNESS:

11

MR. HUDIS: Yes.
Q.

How does Mr. Malamud gain access to

Internet Archive's systems to submit a post?

12
13

Would you say the question

one more time, please?

9
10

Objection, lack of personal

knowledge, calls for speculation.

7
8

And he accesses Internet Archive's systems

MS. LU:

Objection, lack of personal

knowledge, calls for speculation.

14

THE WITNESS:

In the instance of this

15

item, it would be through the use of -- this item

16

was submitted through the user account associated

17

with [e-mail] and was used by submission

18

of -- and gained access by submission of the e-mail

19

address and log-in credentials.

20

Q.

What are log-in credentials?

21

A.

Log-in credential would be an e-mail

22
23

address and password.
Q.

Did Internet Archive monitor the materials

24

posted to its servers as reflected by these logs of

25

Exhibit 8?

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2

MS. LU:

Objection, vague and ambiguous,

lack of personal knowledge.

3

MR. HUDIS:

4

Q.

You may answer.

5

A.

One more time, please.

6

Q.

Yes.

Did Internet Archive monitor the

7

materials posted to its servers as reflected by

8

these logs of Exhibit 8?

9

A.

To the best of my knowledge, no person

10

working on behalf of Internet Archive monitored --

11

personally reviewed the processes at work for each

12

one of these tasks.

13

Q.

And after the material was posted, did

14

Internet Archive exercise any quality control of

15

the materials once submitted?

16
17

MS. LU:
knowledge.

18
19

And vague and ambiguous.

THE WITNESS:

To the best of my knowledge,

no.

20

MR. HUDIS:

21
22

Objection, lack of personal

Q.

And according to Exhibit 8, when did you

search for these logs?

23

A.

According to Exhibit 8, the search was

24

performed on October 30th, 2014 at 9:40:49 Pacific

25

time.

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1

Q.

Thank you for a precise answer.

2

A.

You're welcome.

3

Q.

What are the dates of these logs?

4

MS. LU:

5

MR. HUDIS:

6
7

Q.

Objection, vague and ambiguous.
All right.

Can you tell from Exhibit 8 the dates of

these logs on Exhibit 8?

8

MS. LU:

9

MR. HUDIS:

10
11

Q.

Objection, vague and ambiguous.
Okay.

Do you want to go through them one at a

time?

12

A.

There's a -- there's a line at the

13

beginning of each log that reads, "Task started at"

14

that has a record -- has Internet Archive's record

15

of the time of submission for each task.

16
17

Q.

And then at the end of each log is there a

time of finish?

18

A.

Yes.

19

Q.

So, the first task, 107010707, what time

20

was this task started?

21
22

MS. LU:

Objection, lack of personal

knowledge.

23

THE WITNESS:

The task log states the task

24

was started on May 26, 2012 at 11:48 a.m. Pacific

25

time.

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2
3

MR. HUDIS:
Q.

Let's go to task No. 107010788.

That's on

Page -- production Page 8.

4

What time was this task started?

5

MS. LU:

6

Objection, lack of personal

knowledge.

7

THE WITNESS:

I can only state that our

8

record -- our record states that the task was

9

started at the same date, May 26th, 2012, at

10

11:48 a.m. Pacific time.

11
12
13

MR. HUDIS:
Q.

Exhibit 8, when was task 107019567 started?

14
15

And if we go to production Page 21 of

MS. LU:

Objection, lack of personal

knowledge.

16

THE WITNESS:

Again, I only have the

17

record created by our system.

18

the task was started at -- on the same date,

19

May 26th, 2012, at, let's see, 1:07 Pacific time.

20

1:07 p.m.

21
22

That record states

MR. HUDIS:
Q.

And if you could turn to page --

23

production Page 23 of Exhibit 8, what time was task

24

107034141 started?

25

MS. LU:

Objection, lack of personal

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knowledge.

2

THE WITNESS:

The task log reads that the

3

task started on the same date, May 26th, 2012, at

4

4:46 p.m. Pacific time.

5

MR. HUDIS:

6
7

Q.

Mr. Butler, please turn to Page 26 of

Exhibit 8.

8

What time was task 107040689 started?

9

MS. LU:

10

Objection, lack of personal

knowledge.

11

THE WITNESS:

The task log states that the

12

task was started on May 27th, 2012, at 6:43 p.m.

13

Pacific time.

14

MR. HUDIS:

15
16

Q.

Exhibit 8.

17
18

Task No. 107040792, according to your
records, when did this task start?

19
20

Mr. Butler, please turn to Page 28 of

MS. LU:

Objection, lack of personal

knowledge.

21

THE WITNESS:

The task log reads that the

22

task started on May 27th, 2012 at 6:43 p.m. Pacific

23

time.

24
25

MR. HUDIS:
Q.

Mr. Butler, please turn to Page 33 of

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Exhibit 8.

2

What time did Task ID 107040809 start?

3

MS. LU:

4

Objection, lack of personal

knowledge.

5

THE WITNESS:

The task log reads that the

6

task started at -- on May 27th, 2012 at 6:44 p.m.

7

Pacific time.

8

MS. AHMAD:

Let's take a break.

9

MR. HUDIS:

Yes.

10

VIDEO OPERATOR:

This marks the end of

11

volume 1, disk 1 in the deposition of Chris Butler.

12

the time is 11:16 a.m.

We're off the record.

13

(Brief recess.)

14

VIDEO OPERATOR:

This marks the beginning

15

of volume 1, disk 2 in the deposition of Chris

16

Butler.

17

record.

18
19

The time is 11:24 a.m., and we are on the

MR. HUDIS:
Q.

Mr. Butler, each of these logs of

20

Exhibit 8 reflects a process of content submission

21

by Mr. Malamud or somebody using his credentials?

22
23

MS. LU:

knowledge, and misstates prior testimony.

24
25

Objection, lack of personal

MR. HUDIS:
Q.

You may answer.

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1

A.

2
3

What was the question again, please?
MR. HUDIS:

Q.

Yes.

Do the logs of Exhibit 8 reflect the

4

activity of submitting content to Internet

5

Archive's website by Carl Malamud or somebody using

6

his log-in credentials?

7
8

MS. LU:

Objection, lack of personal

knowledge, assumes facts not in evidence.

9

THE WITNESS:

10

MR. HUDIS:

11

THE WITNESS:

The -- these records --

12

Of Exhibit 8.
-- of Exhibit 8 reflect the

tasks submitted for -- for this item.

13

MR. HUDIS:

14

Q.

What item is that?

15

A.

The item is gov.law.aera.standards.1999.

16

Q.

Uh-huh.

17

A.

The record of the submitter in -- in these

18

logs is the account associated with the e-mail

19

address [e-mail].

20
21
22
23
24
25

Q.

Which you associate with Carl Malamud?
MS. LU:

Objection, misstates prior

testimony.
THE WITNESS:

I associate the e-mail

address [e-mail] with Carl Malamud.
MR. HUDIS:

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1

Q.

And each of these logs reflect processes

2

that were performed on May 26th and May 27th of

3

2012?

4
5

MS. LU:
knowledge.

6
7

THE WITNESS:

The question one more time,

please.

8

MR. HUDIS:

9
10

Objection, lack of personal

Q.

Yes.

Each of these logs reflects processes that

were performed on May 26th and May 27th, 2012?

11

A.

The logs list the dates that these were

12

performed as May 27th -- May 26th and May 27th of

13

2012.

14

Q.

Each of these documents of Exhibit 8 is a

15

log that resulted from a command being run on

16

Internet Archive's web servers?

17
18

MS. LU:
knowledge.

19
20

THE WITNESS:

The question one more time,

please.

21
22

Objection, lack of personal

MR. HUDIS:
Q.

Yes.

Each of these documents of Exhibit 8 is a

23

log that resulted from a command being run on

24

Internet Archive's servers?

25

MS. LU:

And also add, vague and ambiguous

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objection.

2

THE WITNESS:

This is the Internet

3

Archive's log of the -- of the tasks submitted,

4

including commands submitted to Internet Archive's

5

website for the identifier previously mentioned.

6
7

MR. HUDIS:
Q.

And each of these logs has a command line

8

that is reflected by the line [cmd] right arrow, do

9

you see that?

10

MS. LU:

11

on which page of which --

Counsel, sorry, where are you,

12

MR. HUDIS:

13

Exhibit 8, the command line.

14

MS. LU:

According to Page 5 of

I think, for the record, you're

15

talking about [cmd] two equal signs and then

16

greater than symbol?

17
18

MR. HUDIS:

Yes, which I define as right

arrow.

19

Q.

Do you see that?

20

A.

Yes.

21

Q.

And if you go back to Exhibit 7, the

22

different commands that were performed starting

23

from the bottom are archive.php, derive.php,

24

bup.php, again twice archive.php, derive.php and

25

bup.php.

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Do you see that?

2

A.

Yes.

3

Q.

And we will leave for later the last one

4

at the top, says, "make_dark."

5

for later.

6
7

Each of these commands has a "php" file
extension.

8
9

We'll leave that

Do you know what a "php" is?

MS. LU:

Objection, lack of personal

knowledge.

10

THE WITNESS:

I don't know what "php"

11

stands for.

12

associated with -- with web pages.

13
14
15

MR. HUDIS:
Q.

Is it a scripting language, to the best of

your knowledge?

16
17

It's an extension that I've seen

MS. LU:

Objection, lack of personal

knowledge.

18

THE WITNESS:

19

MR. HUDIS:

20

Q.

21

I don't know.

stored?

22
23

Do you know where the php files are

MS. LU:

Objection, lack of personal

knowledge, vague and ambiguous.

24

THE WITNESS:

25

MR. HUDIS:

No.

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1

Q.

2
3

Do you know who wrote the php scripts?
MS. LU:

Objection, lack of personal

knowledge.

4

THE WITNESS:

5

MR. HUDIS:

6
7

Q.

Do you know if the php file extensions

were Carl Malamud's scripts?

8
9

No.

MS. LU:

Objection, lack of personal

knowledge, and vague and ambiguous.

10

THE WITNESS:

I know that -- that these

11

commands that you see listed in the command

12

column --

13

MR. HUDIS:

14

THE WITNESS:

The witness is pointing --- on Exhibit 7 and also

15

listed by the bracketed command tag by the right

16

arrow previously mentioned are generic commands

17

that are associated with many, many items.

18

are very common commands and functions of the

19

archive.org website.

20
21
22

They

MR. HUDIS:
Q.

Looking at Exhibit 7, you see there is a

column that says "args," do you see that?

23

A.

Yes.

24

Q.

Do you know whether that stands for

25

arguments?

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2

MS. LU:

Objection, lack of personal

knowledge.

3

THE WITNESS:

4

MR. HUDIS:

5

Q.

No.

Do you know what arguments were supplied

6

for each of the commands for each of these logs so

7

that -- so that the process described in the log

8

would run?

9
10

MS. LU:

Objection, lack of personal

knowledge, and vague and ambiguous.

11

THE WITNESS:

There are records of -- of

12

information associated with the term "args" in

13

each -- in each task log.

14
15

MR. HUDIS:
Q.

So, for example, looking at Exhibit 7,

16

does the submission of the argument

17

"done=delsrc&from_url=ry" -- excuse me, "rsyn..."

18

enable archive.php to run?

19
20

MS. LU:
knowledge.

21
22

THE WITNESS:

25

I don't know that that's

what enables archive.php to run.

23
24

Objection, lack of personal

MR. HUDIS:
Q.

Looking at Exhibit 7, do you know what

each of these commands do?

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2

MS. LU:

Objection, lack of personal

knowledge, and vague and ambiguous.

3

THE WITNESS:

I have a general

4

understanding of the function of each of these

5

commands.

6

MR. HUDIS:

7

Q.

What does the archive.php command do?

8

A.

Archive.php is associated with the

9

submission of files or information by a user to be

10

incorporated into the item and displayed, made

11

available with that item.

12
13

Q.

Do you know why the archive.php command

was run three times?

14

MS. LU:

15

knowledge.

16

Objection, lack of personal

evidence.

17

And objection, assumes facts not in

THE WITNESS:

Generally, the first

18

archive.php is associated with the submission of --

19

of a -- a file relating to a work that is a text or

20

movie or audio recording.

21

metadata that needs to be submitted with the

22

initiating task for an item.

23

It also contains

Subsequent archive.php commands may

24

correspond to the submission of further files --

25

excuse me, further files for information to be

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incorporated with the item.

2
3

MR. HUDIS:
Q.

4
5

Do you know what the derive.php file does?
MS. LU:

Objection, lack of personal

knowledge.

6

THE WITNESS:

Derive.php is associated

7

with the creation of derivative file formats that

8

the archive.org website automatically generates

9

from the original file and -- and presents on the

10

item -- on the item's details page.

11

MR. HUDIS:

12

Q.

On the website?

13

A.

On archive.org.

14

Q.

What does the bup.php command do?

15
16

MS. LU:

Objection, lack of personal

knowledge.

17

THE WITNESS:

"Bup" is associated with

18

creation of a backup of -- of the files, of the

19

item's files, as Internet Archive uses two copies,

20

creates and maintains two copies of a file in case

21

one server has issue that prevent those files from

22

being available.

23
24
25

MR. HUDIS:
Q.

Do you know why the backup.php command was

run twice?

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2

MS. LU:
knowledge.

3

Objection, lack of personal

And assumes facts not in evidence.

THE WITNESS:

The backup.php command is

4

typically run after a change is made to an item,

5

and it is the updating of the backup copy.

6
7

MR. HUDIS:
Q.

Mr. Butler, all of the logs produced by

8

Internet Archive which are now reflected in

9

Exhibit A have the identifier gov.law.area

10

.standards.1999.

11

MS. LU:

12

Objection, lack of personal

knowledge, and misdescribes the documents.

13
14

What is this?

THE WITNESS:

The question is asking what

the identifier is?

15

MR. HUDIS:

16

Q.

Yes.

17

A.

The identifier is a string of characters

18

that is submitted with an item by the submitter

19

that is unique to the item and then is incorporated

20

into the URL for the public page for the item.

21
22
23

MR. HUDIS:
Q.

And that in this instance is reflected in

Exhibit 6?

24

MS. LU:

25

THE WITNESS:

Objection, vague and ambiguous.
The same identifier listed

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for the tasks on Exhibit 8 appears in the URL at

2

the bottom of the printouts for Exhibit 6.

3
4

MR. HUDIS:
Q.

So if Mr. Malamud was the submitter in

5

this case, was it Mr. Malamud who named this

6

particular identifier "gov.law.aera.standards

7

.1999"?

8
9

MS. LU:

Objection, lack of personal

knowledge, calls for speculation.

10

THE WITNESS:

The records of the task log

11

state that the identifier submitted for this item

12

by the submitter is gov.law.aera.standards.1999.

13
14
15

MR. HUDIS:
Q.

In each of the logs of Exhibit 8, there is

a line that says, "server."

16

Do you see that?

17

A.

I see a line that begins with "server."

18

Q.

All right.

19

And then it follows with

"ia600500.us.archive.org."

20

What is this identifier?

21

MS. LU:

22

MR. HUDIS:

23
24
25

Objection.
Next to -- sorry, next to

"server"?
MS. LU:

Objection, lack of personal

knowledge, vague and ambiguous.

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THE WITNESS:

The string of characters

2

next to "server" is the location of a server

3

maintained by Internet Archive that has a server

4

name of "ia600500."

5

MR. HUDIS:

6

Q.

Do you know what is stored on this

7

particular server?

8

"ia600500"?

9
10

MS. LU:

The one you just named,

Objection, lack of personal

knowledge and misstates prior testimony.

11

THE WITNESS:

Generally, servers

12

referenced in task logs store information posted to

13

archive.org's website.

14
15

MR. HUDIS:
Q.

And if you notice, the server name for

16

task 107010707 is different from the server of the

17

task 107010788.

18

Do you see that?

19

MS. LU:

20

THE WITNESS:

21

Yes, I see a different

server name for these two tasks.

22
23

Objection, vague and ambiguous.

MR. HUDIS:
Q.

What's -- if you know, what is the

24

difference between the server from the task

25

107010707 and the server of task 107010788?

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1
2

MS. LU:

knowledge, assumes facts not in evidence.

3
4

THE WITNESS:

I don't know of a

substantial difference between these two servers.

5
6

Objection, lack of personal

MR. HUDIS:
Q.

So if I were to go through the rest of the

7

logs of Exhibit 8 and there were different named

8

servers, you would not know the difference from one

9

server to the next?

10
11

MS. LU:

Objection, assumes facts not in

evidence.

12

THE WITNESS:

13

MR. HUDIS:

14

Q.

Correct.

Mr. Butler, let's go back to Exhibit 6,

15

and that's the 1999 standards posted to Internet

16

Archive's website.

17
18

MS. LU:
testimony.

19
20

Objection, misstates prior

MR. HUDIS:
Q.

Do the logs of Exhibit 8 reflect Carl

21

Malamud or someone with his log-on credentials

22

posting the 1999 standards to Internet Archive's

23

website?

24
25

MS. LU:

Objection, lack of personal

knowledge, calls for speculation, and misstates

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prior testimony.

2

And argumentative.

THE WITNESS:

The logs in Exhibit 8 have a

3

recorded submitter of [e-mail] for the item

4

with the identifier gov.law.aera.standards.1999.

5

This is the same identifier that is listed at the

6

bottom of the printout for Exhibit 6.

7
8
9
10

MR. HUDIS:
Q.

Internet Archive's website in May of 2012, were any
other materials posted with them?

11
12

When the 1999 standards were posted to

MS. LU:

Objection, lack of personal

knowledge and relevance.

13

THE WITNESS:

14

MR. HUDIS:

Can you define "materials"?

15

Q.

Metadata.

16

A.

The -- the task log indicates that a file

17

named "aera.standards.1999.pdf_meta.text" was

18

submitted.

19

"gov.law.aera.standards.1999_meta.xml" was created.

20

Typically, these are associated with the submission

21

of metadata from a submitter.

22
23
24
25

Q.

It also indicates that a file named

For what purpose?
MS. LU:

Objection, lack of personal

knowledge, calls for speculation.
THE WITNESS:

Generally, the -- the

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metadata is submitted to archive.org and displayed.

2

Sometimes it has -- it has informational value for

3

the item.

4

title for an item or an author.

5
6

An example would be the submission of a

MR. HUDIS:
Q.

So, for example, on Exhibit 6, it says,

7

"Author:

8

Association."

9
10

Is that the type of metadata you were
talking about?

11
12

American Educational Research

MS. LU:

Objection, lack of personal

knowledge.

13

THE WITNESS:

Yes, that would be an

14

example of metadata that would typically be

15

submitted by a submitter to be -- to be displayed,

16

along with a posted item.

17
18

MR. HUDIS:
Q.

Did any Internet Archive employees have

19

any participation in posting the 1999 standards or

20

associated metadata to Internet Archive's website?

21

A.

One more time, please.

22

Q.

Sure.

Did any Internet Archive employees

23

have any participation in posting the

24

1999 standards or associated metadata to Internet

25

Archive's website?

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1

A.

To the lack [sic] of my knowledge, no

2

Internet Archive employee directly participated in

3

the posting of this item to archive.org.

4

Q.

What involvement, if any, did Internet

5

Archive have in the posting of the 1999 standards

6

or associated metadata to Internet Archive's

7

website?

8

MS. LU:

9

THE WITNESS:

Objection, vague and ambiguous.
The Internet Archive

10

website, according to this task log, appears to

11

have run standard automated processes responsive to

12

commands submitted by a submitter.

13
14

MR. HUDIS:
Q.

Once posted by Mr. Malamud, where on

15

Internet Archive's website could the 1999 standards

16

be found?

17
18

I'm talking about the URL.
MS. LU:

Objection, assumes facts not in

evidence.

19

THE WITNESS:

The -- the URL associated

20

with this identifier would be archive.org/details/

21

gov.law.aera.standards.1999.

22

MR. HUDIS:

23
24
25

Q.

Was the uploaded metadata also posted to

this same URL?
MS. LU:

Objection, lack of personal

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knowledge.

2

THE WITNESS:

It seems that a metadata

3

file was created and associated with the item.

4

don't see any signs of -- of error in that process

5

from looking at these logs.

6
7
8
9

MR. HUDIS:

I

So let's go through each one

of the logs one at time.
Q.

What is happening -- this is in

Exhibit 8 -- in the log of task 107010707?

10

MS. LU:

Objection, lack personal

11

knowledge, and vague and ambiguous.

12

narrative.

13

THE WITNESS:

14

MR. HUDIS:

15

THE WITNESS:

16

It calls for a

MR. HUDIS:

17
18

Q.

Can you be more specific -Yes.
-- with the question?

What function is being recorded by the log

of 107010707?

19

MS. LU:

20

THE WITNESS:

Same objections.
The log is associated with

21

an archive.php command which I understand to relate

22

to the submission of files and/or metadata.

23
24
25

MR. HUDIS:
Q.

Now, you see below the definition of the

task, it says, "Getting file(s) from," and it gives

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you a very long URL which starts with "rsync."

2
3
4
5

Do you see that?
A.

Sorry, this is near the bottom of the

first page?
Q.

6

Yes.
MR. HUDIS:

May I point to the witness,

8

MS. AHMAD:

Yes.

9

MR. HUDIS:

7

10
11

Counsel?

Q.
file(s)"?

12
13

MS. LU:

THE WITNESS:

18

MR. HUDIS:
Q.

Now, is that the URL from which the

document was uploaded?

19
20

I see -- I see where the log

says, "Getting file(s)."

16
17

Objection, lack of personal

knowledge.

14
15

So you see "Getting file(s)" and "Getting

MS. LU:

Objection, lack of personal

knowledge.

21

THE WITNESS:

This is a URL associated

22

with a submission of information to archive.org for

23

posting with the item.

24
25

MR. HUDIS:
Q.

And the item, the first item is

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1,825 bytes, do you see that?

2
3

MS. LU:
knowledge.

4
5

THE WITNESS:

8
9
10
11

MR. HUDIS:
Q.

And the second "Getting file" then results

in a receipt of -A.

I see a line that states that 1,000,493 --

excuse me -- 14,934,120 bytes received.
Q.

12
13

I see a line that it states

that 1,825 bytes received.

6
7

Objection, lack of personal

Does the log say received from where?
MS. LU:

Objection, lack of personal

knowledge.

14

THE WITNESS:

The notes indicating the --

15

or stating the receipts of this amount of

16

information directly -- directly follow tasks

17

stating that files are being retrieved from the

18

long URL following the term "rsync."

19
20
21

MR. HUDIS:
Q.

production Page 6 of Exhibit 8, the next page.

22
23

Now, you see towards the middle, it says,
"Now synchronizing item to the backup server."

24
25

Could you please turn to Page --

Do you see that?
A.

Yes.

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Q.

At how many locations are the

2

1999 standards stored within Internet Archive, if

3

know?

4
5

MS. LU:

knowledge, assumes facts not in evidence.

6
7

THE WITNESS:

MR. HUDIS:
Q.

10
11

Generally, items submitted

to archive.org are stored on two different servers.

8
9

Objection, lack of personal

For what purpose?
MS. LU:

Objection, lack of personal

knowledge.

12

THE WITNESS:

As -- as I had stated

13

earlier, Internet Archive uses paired storage in

14

the instance that one server becomes inaccessible.

15
16

MR. HUDIS:
Q.

Now, lower down on the same page,

17

production Page 6 of Exhibit 8, it says, "Deleting

18

from hd.www37," et cetera, et cetera,

19

"us.archive.org."

20

Why are these files being deleted?

21

MS. LU:

22
23
24
25

Objection, lack of personal

knowledge, and assumes facts not in evidence.
THE WITNESS:

I don't know exactly what

files are being deleted pursuant to this line.
MR. HUDIS:

Let's turn to production

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Page 99

1

Page 8 of Exhibit 8.

2

task with the ID 107010788.

3

Q.

4
5

And we're now on the 13-page

What task is this log reflecting?
MS. AHMAD:

Objection, lack of personal

knowledge.

6

THE WITNESS:

This log is associated with

7

task No. 107010788.

8

with a derive.php command both in the task log and

9

in the item history.

10

This task ID is associated

MR. HUDIS:

11

Q.

And what function is being performed

12

according to this log which has a derive.php

13

command?

14
15

MS. LU:

Objection, lack of personal

knowledge, assumes facts not in evidence.

16

THE WITNESS:

Derive.php is associated

17

with the automated creation of derivative file

18

formats by the archive.org website.

19

MR. HUDIS:

20

Q.

21
22

Do you know what the BookOp module does?
MS. LU:

Objection, lack of personal

knowledge.

23

THE WITNESS:

No, I don't know what that

24

specific -- I don't know what the BookOp module

25

does.

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Page 100

1
2

MR. HUDIS:
Page 10 of Exhibit 8.

3
4

Could we turn to production

Q.

Do you see towards the top of the page, it

says, "Heuristic Resolution Analysis"?

5

A.

Yes.

6

Q.

And underneath it, it says, "number of

7

pages in PDF: 211"?

8

A.

Yes.

9

Q.

Is this the PDF file corresponding to the

10

uploaded 1999 standards?

11
12

MS. LU:

Objection, lack of personal

knowledge.

13

THE WITNESS:

This task appears to be

14

being performed on a file named "aera.standards

15

.1999.pdf."

16

task No. 107010707 states that this file was

17

submitted to the item by the submitter.

18

The initial task for this item with

MR. HUDIS:

19

Q.

And my question from Page 10, Exhibit 8,

20

task 107010788 is, what was the size of that PDF

21

file?

22
23
24
25

MS. LU:

Objection, lack of personal

knowledge.
THE WITNESS:

The task history has a

reading that says that the PDF file has 211 pages.

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Page 101

1
2

MR. HUDIS:
Q.

And if you could turn to Page 11 --

3

production Page 11 of Exhibit 8, do you know what

4

is happening where it says formatting gifs?

5
6

MS. LU:
knowledge.

7
8

THE WITNESS:

As clarification, the log

states "forming gifs."

9
10

Objection, lack of personal

MR. HUDIS:

Thank you, "forming gifs."

Thank you.

11

THE WITNESS:

This appears to be the

12

generation of random images taken from a submitted

13

text which are then displayed alongside the item.

14

This is a standard process performed for texts that

15

are posted to archive.org.

16
17
18

MR. HUDIS:
Q.

excuse me, the AnimatedGIF, G-I-F, module does?

19
20

Do you know what the AnimatedGIFT --

MS. LU:

Objection, lack of personal

knowledge.

21

THE WITNESS:

AnimatedGIF module creates

22

random images from a submitted text to be displayed

23

alongside a posted text to archive.org.

24
25

MR. HUDIS:
Q.

And what is the function of these random

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images?

2
3

MS. LU:

Objection, lack of personal

knowledge.

4

THE WITNESS:

The random images, as I

5

understand it, are generated to -- to provide an

6

example of pages that may exist in a text.

7

MR. HUDIS:

8
9

Q.
does?

10
11

And do you know what the AbbyyXML module

MS. LU:

Objection, lack of personal

knowledge.

12

THE WITNESS:

As I understand it, the

13

AbbyyXML module plays a role in generating a text

14

file, a plain text file, of a submitted text.

15
16
17

MR. HUDIS:
Q.

Mr. Butler, could you turn to Page 13 of

Exhibit 8.

At the bottom, it says, DjvuXML module.

18

Do you know what this module does?

19

MS. LU:

20

Objection, lack of personal

knowledge.

21

THE WITNESS:

As I understand it, this

22

module creates a derivative of the initially

23

submitted text in a -- that functions with a

24

special reader called a DjVu reader or deja vu

25

reader.

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Page 103

1
2

MR. HUDIS:
Q.

3
4

Do you know what a DjVu reader does?
MS. LU:

Objection, lack of personal

knowledge.

5

THE WITNESS:

The extent of my knowledge

6

is that a -- a reader will display a -- a DjVu text

7

for -- for display for a user.

8
9

MR. HUDIS:
Q.

10
11

On a website?
MS. LU:

Objection, lack of personal

knowledge.

12

THE WITNESS:

I'm afraid I don't recall if

13

it's used within a browser or if it's -- if it is

14

used as a stand-alone application.

15
16

MR. HUDIS:
Q.

Looking at Exhibit 6, the top third of the

17

page, the 1999 standards were within a framed

18

document which I told you basically turns the

19

pages.

20

Do you know what kind of reader this is?

21

MS. LU:

22
23
24
25

Objection, lack of personal

knowledge, and assumes facts not in evidence.
THE WITNESS:

Yes, this is the Internet

Archive's BookReader application.
MR. HUDIS:

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Page 104

1
2
3
4

Q.

And is that created by the DjVu module or

the BookOp module, or do you not know?
MS. LU:

Objection, lack of personal knowledge

and compound.

5

THE WITNESS:

I know that it's not created

6

by the DjVu module.

7

the BookOp module plays a role in that.

8
9
10
11

I don't know whether are not

MR. HUDIS:
Q.

Do you know what the EPUB module does?

MS. LU:

Objection, lack of personal

knowledge.

12

THE WITNESS:

Generally, the EPUB module

13

creates another derivative format that is a -- a

14

.epub file, e-p-u-b.

15
16

MR. HUDIS:
Q.

17
18

MS. LU:
knowledge.

19
20

And what does that do?
Objection, lack of personal

Vague and ambiguous.

MS. AHMAD:

For the record, we're on

Page 14 now?

21

MR. HUDIS:

22

are on Page 14 of Exhibit 8.

23

THE WITNESS:

24

MR. HUDIS:

Page 15 -- excuse me.

25

Q.

Yes, we

Thank you.

I'm sorry, the question was?
Yes.

Do you know what the EPUB file does once

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created by the EPUB module?

2

A.

An EPUB file is a file format that is

3

associated with an electronic text and must be read

4

by software that's specifically designed to display

5

an EPUB file.

6
7

Q.

This is

on Page 15 of Exhibit 8.

8
9

Do you know what TOC module does?

MS. LU:

Objection, lack of personal

knowledge.

10

THE WITNESS:

11

MR. HUDIS:

12
13

Q.

Do you know what a scandataXML module

does?

14
15

No.

MS. LU:

Objection, lack of personal

knowledge.

16

THE WITNESS:

17

MR. HUDIS:

18
19
20
21
22

Q.

No.

Do you know what a PDF module does?

And

that's on page 16 of Exhibit 8.
MS. LU:

Objection, lack of personal

knowledge.
THE WITNESS:

PDF module creates a

23

derivative file of an initial file.

24

a black and white PDF that's smaller in size than

25

any initial PDF that had been submitted.

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It may create

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Page 106

1
2

MR. HUDIS:
Q.

3
4

Do you know what a HackPDF does?
MS. LU:

Objection, lack of personal

knowledge.

5

THE WITNESS:

6

MR. HUDIS:

No.
Excuse me, HackPDF module.

7

Q.

And the answer is no?

8

A.

No.

9

Q.

Could you turn to Page -- production

10

Page 20 of Exhibit 8.

11

task 107010788.

12
13

Do you know why each of these files on
Page 20 of Exhibit 8 are being autocleaned?

14
15

This is the last page of

MS. LU:

Objection, lack of personal

knowledge, and assumes facts not in evidence.

16

THE WITNESS:

17

MR. HUDIS:

18

Q.

No, I don't know.

Could you go to the next task, please,

19

production Page 21 of Exhibit 8.

20

starting task 107019567.

21

according to this log, is the backup command?

22
23
24
25

MS. LU:

This is now

And being performed here,

Objection, lack of personal

knowledge, assumes facts not in evidence.
THE WITNESS:

The command associated with

this task is bup.php, which I understand to be

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associated with the creation of a backup of an

2

item.

3
4
5
6
7
8
9

MR. HUDIS:
Q.

And the back -- and the item being backed

up is gov.law.aera.standards.1999?
A.

The identifier listed on this task in this

task history is that identifier.
Q.

And this was, as we discussed before,

placing the item on a backup server to make sure,

10

if one server is not accessible, another server

11

could be accessible at Internet Archive?

12
13

MS. LU:

knowledge, and assumes facts not in evidence.

14
15

THE WITNESS:

18

That is the operation that's

associated with the bup.php command.

16
17

Objection, lack of personal

MR. HUDIS:
Q.

Could we go to Page 23 of Exhibit 8.

This

is now starting the task 107034141.

19

What task is being performed here?

20

MS. LU:

21
22

Objection, lack of personal

knowledge.
THE WITNESS:

The command associated

23

listed on this task log is archive.php which is

24

associated with the submission of files or metadata

25

for an item.

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Page 108

1
2
3

MR. HUDIS:
Q.

this task?

4
5

So this was the submission of metadata in

MS. LU:

Objection, lack of personal

knowledge.

6

THE WITNESS:

The task -- the task log

7

states that it was an archive -- states that it was

8

an archive.php command which is associated with the

9

submission of -- of metadata or files.

10
11

MR. HUDIS:
Q.

Could you turn to Page -- production

12

Page 24 of Exhibit 8.

13

messages at the bottom of this page.

14

"Warning:

Possible DNS Spoofing Detected!"

15

"Warning:

Remote Host Identification has Changed!

16

It is possible that someone is doing something

17

nasty!"

18
19

It says

Do you know what the purpose of these
warnings are?

20
21

And there are warning

MS. LU:

Objection, lack of personal

knowledge.

22

THE WITNESS:

23

MR. HUDIS:

24
25

Q.

No, I don't.

Please turn to production Page 26 of

Exhibit 8.

This is now starting task

Alderson Reporting Company
1-800-FOR-DEPO

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Christopher Butler

December 2, 2014
San Francisco, CA

Page 109

1

No. 107040689.

2
3

And is this another archive.php command
being performed here?

4
5

MS. LU:

Objection, lack of personal

knowledge.

6

THE WITNESS:

The command associated -- or

7

the command listed on this task log is a command

8

archive.php.

9
10
11

MR. HUDIS:
Q.

performed in this task?

12
13

Do you know what function is being

MS. LU:

Objection, lack of personal

knowledge.

14

THE WITNESS:

Archive.php, again, is

15

associated with the submission of files or metadata

16

for an item.

17
18
19
20
21
22

MR. HUDIS:
Q.

And, again, the item is gov.law.aera

.standards.1999?
A.

The identifier listed in these task logs

is that identifier.
Q.

And, again, we see on Page 27 of Exhibit 8

23

the same warnings.

24

warnings are about?

25

A.

And you don't know what those

That's correct.

Alderson Reporting Company
1-800-FOR-DEPO

Case 1:14-cv-00857-TSC Document 60-32 Filed 12/21/15 Page 111 of 144
Christopher Butler

December 2, 2014
San Francisco, CA

Page 110

1
2

Q.

Exhibit 8.

3
4

performed here?
MS. LU:

THE WITNESS:

MR. HUDIS:

10

Q.

In this specific log, do you know what is

happening here?

12
13

The command listed on this

task log for this task is derive.php.

9

11

Objection, lack of personal

knowledge.

7
8

This starts task 107040792.

And the derive.php command is being

5
6

Could we please turn to Page 28 of

MS. LU:

Objection, lack of personal

knowledge, vague and ambiguous.

14

THE WITNESS:

Generally, a -- an

15

archive.php task may trigger a derive task to

16

update the derivative files after any change has

17

been made to the initially submitted metadata or

18

file.

19
20
21
22
23
24
25

MR. HUDIS:
Q.

Could we turn to Page 31 of Exhibit 8.
At the bottom of that page, do you know

why the files are being autocleaned?
MS. LU:

Objection, lack of personal

knowledge, assumes facts not in evidence.
THE WITNESS:

No.

Alderson Reporting Company
1-800-FOR-DEPO

Case 1:14-cv-00857-TSC Document 60-32 Filed 12/21/15 Page 112 of 144
Christopher Butler

December 2, 2014
San Francisco, CA

Page 111

1
2

MR. HUDIS:
Q.

Could we turn now to Page 33 of Exhibit 8.

3

This is the final task and it is identified with

4

107040809.

5
6

Do you know what task is being performed
here, bup.php?

7
8

MS. LU:

Objection, lack of personal

knowledge.

9

THE WITNESS:

The command listed on this

10

task log is bup.php.

11

creation of a backup file -- backup copies of the

12

file for the item.

13
14
15

MR. HUDIS:
Q.

MS. LU:

THE WITNESS:

22

That is the identifier that

is listed on this task log.

20
21

Objection, lack of personal

knowledge, assumes facts not in evidence.

18
19

And the item being backed up here is

gov.law.aera.standards.1999?

16
17

This is associated with the

MR. HUDIS:
Q.

And this is a backup task log?
MS. LU:

Objection, lack of personal

23

knowledge, assumes facts not in evidence, and

24

argumentative.

25

THE WITNESS:

The command listed for this

Alderson Reporting Company
1-800-FOR-DEPO

Case 1:14-cv-00857-TSC Document 60-32 Filed 12/21/15 Page 113 of 144
Christopher Butler

December 2, 2014
San Francisco, CA

Page 112

1

task log is bup.php which is a backup task.

2

MR. HUDIS:

3

VIDEO OPERATOR:

4

Off the record.
The time 12:12 p.m.

We

are off the record.

5

(Brief recess.)

6

(Plaintiffs' Exhibit 9 marked for

7

identification.)

8

VIDEO OPERATOR:

9

and we are on the record.

10
11

The time is 12:20 p.m.,

MR. HUDIS:
Q.

Mr. Butler, I'd like you to refer back to

12

Exhibit 7.

13

command that says, "make_dark.php."

14

And you see at the very top, there's a

Do you see that?

15

A.

Yes.

16

Q.

What does the make_dark command do?

17
18

MS. LU:

Objection, lack of personal

knowledge.

19

THE WITNESS:

20

from public access.

21

Make_dark takes down files

MR. HUDIS:

22
23

Q.

marked as Exhibit 9.

24
25

I'd like you to now look at what has been

What is this one-page exhibit?
A.

This exhibit is a log for a task

Alderson Reporting Company
1-800-FOR-DEPO

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December 2, 2014
San Francisco, CA

Page 113

1

associated with the item with identifier

2

gov.law.aera.standards.1999.

3

Q.

And what is the command being run as

4

reflected in this log of Exhibit 9 which bears task

5

ID 315793300?

6
7
8
9
10

A.

make_dark.php.
Q.

When we looked at the commands and tasks

of Exhibit 8, you saw that the commands were being
run on multiple servers, correct?

11
12

The command listed in this task log is

MS. LU:

Objection, lack of personal

knowledge, and assumes facts not in evidence.

13

THE WITNESS:

I saw that there were

14

different server addresses listed in -- throughout

15

the task -- throughout the various tasks associated

16

with this item.

17
18
19

MR. HUDIS:
Q.

And the task of Exhibit 9, 315793300, on

how many servers was this task run?

20

MS. LU:

Objection, lack of personal

21

knowledge, assumes facts not in evidence, vague and

22

ambiguous.

23
24
25

MR. HUDIS:
Q.

According to this tag, there is one server

identified.

Do you see it?

Alderson Reporting Company
1-800-FOR-DEPO

Case 1:14-cv-00857-TSC Document 60-32 Filed 12/21/15 Page 115 of 144
Christopher Butler

December 2, 2014
San Francisco, CA

Page 114

1

MS. LU:

Objection, lack of personal

2

knowledge, assumes facts not in evidence, and

3

argumentative.

4

MR. HUDIS:

5

Q.

And you see that the server is ia600500?

6

MS. LU:

7

MR. HUDIS:

Objection, vague and ambiguous.

8

Q.

You may answer.

9

A.

I see that an address for a server is

10

listed in this task log with the server name of

11

ia600500.

12
13

Q.

Do you see any other servers listed on

this log of Exhibit 9?

14

A.

I see a listing associated with a backup

15

server near the bottom with server address

16

ia700500.us.archive.org.

17

Q.

So do you know if the make_dark command

18

was being run, according this log, on one server or

19

two?

20

MS. LU:

Objection, lack of personal

21

knowledge, and vague and ambiguous.

22

facts not in evidence.

23

THE WITNESS:

And assumes

The item -- the task log

24

states that the item is being synchronized to the

25

backup server.

I would associate that with the --

Alderson Reporting Company
1-800-FOR-DEPO

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December 2, 2014
San Francisco, CA

Page 122

1

content on Exhibit 6 was there and then the content

2

in Exhibit 10 is gone?

3

MS. LU:

4

MR. HUDIS:

5

Q.

6
7

Replaced by the placeholder?
MS. LU:

Objection, assumes facts not in

evidence, and calls for speculation.

8
9

Objection --

THE WITNESS:

Typically, when the

placeholder message is displayed on a page that

10

previously displayed a live item, it is an

11

indication that the item has been taken down.

12
13
14

MR. HUDIS:
Q.
command?

15
16

And is that the result of a make_dark

MS. LU:

Objection, lack of personal

knowledge.

17

THE WITNESS:

18

make_dark command.

19

It can be the result of a

make_dark command.

20
21

Uh -- it can be the result of a

MR. HUDIS:
Q.

Do you know whether the change of the live

22

content of Exhibit 6 and then the placeholder that

23

says this item is not available of Exhibit 10

24

resulted from the make_dark command shown in log

25

315793300 of Exhibit 9?

Alderson Reporting Company
1-800-FOR-DEPO

Case 1:14-cv-00857-TSC Document 60-32 Filed 12/21/15 Page 124 of 144
Christopher Butler

December 2, 2014
San Francisco, CA

Page 123

1

MS. LU:

Objection, vague and ambiguous,

2

assumes facts not in evidence and lack of personal

3

knowledge.

4

THE WITNESS:

I can state that this is the

5

message and this is how I would expect the page to

6

appear following the submission of a make_dark

7

command for a live item.

8
9
10

MR. HUDIS:

Note that the witness is

pointing to Exhibit 10.
Q.

On Exhibit 10, who, if you know, inserted

11

the language "The item is not available due to

12

issues with the item's content"?

13
14

MS. AHMAD:

Objection, outside the scope

of the deposition topics.

15

MR. HUDIS:

16

MS. LU:

17

MR. HUDIS:

18

Counsel.

19

I would disagree with that.

And lack of personal knowledge.
I would disagree with that,

objections.

20
21
22

Public Resource's counsel can assert her

So I'll reask the question subject to all
objections.
Q.

Do you know who inserted the language in

23

Exhibit 10, "The item is not available due to

24

issues with the item's content"?

25

THE WITNESS:

This is a placeholder

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1-800-FOR-DEPO

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December 2, 2014
San Francisco, CA

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1

message that was determined years ago.

2

know who drafted that message and selected it.

3

It's the general message that is displayed on an

4

item's page after a make_dark command has been

5

submitted for that item.

6

MR. HUDIS:

7

VIDEO OPERATOR:

8

I don't

Off the record.
The time is 12:41 p.m.

and we are off the record.

9

(Discussion off the record.)

10

(Plaintiffs' Exhibit 11 marked for

11

identification.)

12

VIDEO OPERATOR:

13

The time is 12:42 p.m.,

and we are on the record.

14

MR. HUDIS:

15

Q.

Mr. Butler, once content is taken down

16

from an Internet Archive web page from public

17

access, can your company still track the number of

18

visits to that page while the content was still

19

there?

20

MS. LU:

21

THE WITNESS:

Objection, vague and ambiguous.
The record that we have

22

is -- is called a download count and relates to the

23

number of visits to -- to pages with files for the

24

item.

25

number of HTTP requests from -- from an IP address

So it's our -- it's our best record of the

Alderson Reporting Company
1-800-FOR-DEPO

Case 1:14-cv-00857-TSC Document 60-32 Filed 12/21/15 Page 126 of 144
Christopher Butler

December 2, 2014
San Francisco, CA

Page 125

1

where multiple visits from the same IP address in

2

the same day have been counted as one download.

3

MR. HUDIS:

4
5

Q.

Mr. Butler, have you ever heard of the

term "hit count"?

6

A.

Yes.

7

Q.

What does "hit count" refer to?

8

A.

Hit count --

9
10

MS. LU:

Objection to the extent it calls

for expert testimony.

11

MR. HUDIS:

12

Q.

You may answer.

13

A.

Hit count, as I understand it, relates to

14

the amount of visits to a given web page.

15

Q.

So we've talked about today a number of

16

views, a number of downloads, correct, to a web

17

page?

18

A.

19
20

MS. LU:

23

Objection, misstates prior

testimony.

21
22

Yes.

MR. HUDIS:
Q.
A.

You may answer.
We've talked about the definition of our

24

download count number and discussed a little bit

25

how that relates to downloading and viewing.

Alderson Reporting Company
1-800-FOR-DEPO

Case 1:14-cv-00857-TSC Document 60-32 Filed 12/21/15 Page 127 of 144
Christopher Butler

December 2, 2014
San Francisco, CA

Page 126

1
2

MR. HUDIS:
Q.

So your company defines download count.

3

Does the download count distinguish between an

4

Internet user's view of a page versus capturing and

5

copying content to go to another computer?

6

MS. LU:

7

THE WITNESS:

Objection, vague and ambiguous.
The download count does not

8

distinguish between, for example, a visit to a web

9

page without, for instance, saving that file

10

through the -- a browser's downloader or selecting

11

files' save-as from the browser.

12
13

MR. HUDIS:
Q.

Does Internet Archive's download count

14

distinguish between visits from human beings over

15

the Internet versus Internet crawling robots, or

16

bots, or uploaders, or internal visits from

17

Internet Archive processes or staff?

18

MS. LU:

19

THE WITNESS:

Objection, vague and ambiguous.
No.

The download count does

20

not distinguish between all of those different

21

types of access.

22
23
24
25

MR. HUDIS:
Q.

For the purposes of my next question, I

need your definition of what an IP address is.
A.

Okay.

Alderson Reporting Company
1-800-FOR-DEPO

Case 1:14-cv-00857-TSC Document 60-32 Filed 12/21/15 Page 128 of 144
Christopher Butler

December 2, 2014
San Francisco, CA

Page 127

1

Q.

2

What is an IP address?
MS. LU:

Objection, to the extent it calls

3

for expert testimony.

4

THE WITNESS:

What I know about an

5

IP address is that it is a unique number associated

6

with a computer that is connected to a network.

7
8
9
10

MR. HUDIS:
Q.

Does Internet Archive's download count

include or exclude multiple visits from the same
IP address during a given day?

11

MS. LU:

12

THE WITNESS:

Objection, vague and ambiguous.
During a day, as defined by

13

UTC time, Internet Archive's systems are designed

14

to log multiple visits from the same IP -- count,

15

excuse me, count multiple visits from the same

16

IP address as only one download.

17
18

MR. HUDIS:
Q.

Does Internet Archive maintain any records

19

or other information that would enable it to be

20

more specific about what is included or excluded

21

from a download count?

22

MS. LU:

23

THE WITNESS:

24
25

Objection, vague and ambiguous.
Can you read the question

again, please?
MR. HUDIS:

Yes.

Alderson Reporting Company
1-800-FOR-DEPO

Case 1:14-cv-00857-TSC Document 60-32 Filed 12/21/15 Page 129 of 144
Christopher Butler

December 2, 2014
San Francisco, CA

Page 128

1

Q.

Does Internet Archive maintain any records

2

or other information that would enable it to be

3

more specific about what is included or excluded

4

from a download count?

5

MS. LU:

6
7

THE WITNESS:

I'm not aware of any further

information that we would be able to supply.

8
9

Same objection.

MR. HUDIS:
Q.

How does Internet Archive obtain the

10

download count of a specific web page after the

11

uploaded content is removed?

12

MS. LU:

Objection, lack of personal

13

knowledge, assumes facts not in evidence.

14

if you want to ask him about how someone retrieved

15

this Exhibit 11, then I would not object to that.

16
17

Counsel,

MR. HUDIS:
Q.

All right.

I'm going to ask you

18

specifically about Exhibit 11.

19

generally how the information was obtained.

20

I'd like to know

We've established that a make_dark command

21

was run for the content of the 1999 standards in

22

June of 2014, correct?

23
24
25

MS. LU:

Objection, misstates prior

testimony, lack of personal knowledge.
MR. HUDIS:

Alderson Reporting Company
1-800-FOR-DEPO

Case 1:14-cv-00857-TSC Document 60-32 Filed 12/21/15 Page 130 of 144
Christopher Butler

December 2, 2014
San Francisco, CA

Page 129

1
2

Q.

When was this make_dark command of

Exhibit 9 run?

3

A.

The date listed on the task log for this

4

task which has a command listed of make_dark.php is

5

June 11th, 2014.

6
7

Q.

document that's in front of you.

8

What is the date of this document?

9
10

I've now marked as Exhibit 11 a one-page

A.

The date of Exhibit 11 is November 25th,

2014.

11

Q.

What is this document?

12

A.

This document is a screen capture of the

13

Mac Terminal application.

14

myself to submit a query to archive.org's systems

15

to obtain archive.org's records for the download

16

count for the item with identifier gov.law.aera

17

.standards.1999.

18

Q.

The Terminal was used by

The make_dark command of Exhibit 9

19

associated with that identifier was run in June of

20

2014, correct?

21

A.

The task log lists that date -- the task

22

log associated with the make_dark command lists

23

that date.

24
25

Q.

And the same identifier you got at a

download -- a set of download information on

Alderson Reporting Company
1-800-FOR-DEPO

Case 1:14-cv-00857-TSC Document 60-32 Filed 12/21/15 Page 131 of 144
Christopher Butler

December 2, 2014
San Francisco, CA

Page 130

1

November 25th, 2014, according to Exhibit 11,

2

correct?

3

MS. LU:

4

THE WITNESS:

5

Objection, vague and ambiguous.
Sorry, one more time,

please.

6

MR. HUDIS:

7

Q.

Yes.

We established that make_dark command for

8

gov.law.aera.standards.1999 was run in June of

9

2014, correct?

10
11

MS. LU:
knowledge.

12
13

THE WITNESS:

16

MR. HUDIS:
Q.

So you got download information for the

same identifier on November 25th, 2014, correct?

17

MS. LU:

18

THE WITNESS:

19

22
23

Objection, vague and ambiguous.
I ran a query for Internet

Archive's download count for that same identifier.

20
21

The task logs list that

date.

14
15

Objection, lack of personal

MR. HUDIS:
Q.

So I now ask the same question that I

asked before.
How does Internet Archive obtain a

24

download count for a specific Internet Archive web

25

page after the uploaded content has been removed?

Alderson Reporting Company
1-800-FOR-DEPO

Case 1:14-cv-00857-TSC Document 60-32 Filed 12/21/15 Page 132 of 144
Christopher Butler

December 2, 2014
San Francisco, CA

Page 131

1

MS. LU:

Objection, lack of personal

2

knowledge, misstates prior testimony, and assumes

3

facts not in evidence, and vague and ambiguous.

4

THE WITNESS:

A SQL query can be run on

5

Internet Archive's system to obtain a metadata

6

value that has been associated with this item and

7

generated by archive.org.

8
9
10

MR. HUDIS:
Q.

And the item again is gov.law.aera

.standards.1999?

11

A.

That's correct.

12

Q.

And according to your search and the

13

results that came back on Exhibit 11, how many

14

downloads are reflected for this item while live

15

content was up on the web page associated with

16

gov.law.aera.standards.1999?

17

MS. LU:

Objection, vague and ambiguous,

18

assumes facts not in evidence, lack of personal

19

knowledge.

20

THE WITNESS:

The download count of record

21

from the archive.org system for the identifier that

22

you read is 1,290.

23

MR. HUDIS:

Counsel, will you stipulate

24

that Exhibit 11 is a business record of Internet

25

Archive?

Alderson Reporting Company
1-800-FOR-DEPO

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December 2, 2014
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Page 132

1

MS. AHMAD:

Yes.

2

MR. HUDIS:

Any objections?

3

MS. LU:

4

(Plaintiffs' Exhibit 12 marked for

5

identification.)

6

MR. HUDIS:

7

No objections.

I'm going to have to make a

quick copy.

8

VIDEO OPERATOR:

9

MR. HUDIS:

10
11

Do you want to go off?

Yes, please.

VIDEO OPERATOR:

The time is 12:54 p.m,

and we're off the record.

12

(Brief recess.)

13

VIDEO OPERATOR:

14

and we're on the record.

15
16
17

MR. HUDIS:
Q.

Mr. Butler, all of my following questions

are all relative to the 1999 standards.

18
19

The time is 12:58 p.m.,

Do we understand each other for purposes
of these questions?

20

A.

Yes.

21

Q.

Between May of 2012 and June of 2014, have

22

you ever communicated with Carl Malamud?

23

A.

I have received e-mail from Carl Malamud.

24

Q.

So that was my next question.

25

Mr. Malamud initiated the communication?

Alderson Reporting Company
1-800-FOR-DEPO

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December 2, 2014
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Page 133

1

A.

Yes.

2

Q.

And how did he make that contact?

3

e-mail?

4

A.

Yes.

5

Q.

Besides that one e-mail, on the subject of

By

6

the 1999 standards, did you have any other exchange

7

of communications with Mr. Malamud?

8

MS. LU:

9

MR. HUDIS:

Objection, relevance.

10

Q.

You may answer.

11

A.

No.

12

Q.

Are you aware of anyone else from Internet

13

Archive communicating with Mr. Malamud regarding

14

the 1999 standards between May of 2012 and June of

15

2014?

16

A.

No.

17

Q.

Do you remember the purpose of

18

Mr. Malamud's communication with you regarding the

19

1999 standards?

20

MS. LU:

21

MR. HUDIS:

Objection, vague and ambiguous.

22

Q.

You may answer.

23

A.

Mr. Malamud sent me an e-mail with an

24

attachment relating to a take-down request that he

25

had received relating to the standards.

Alderson Reporting Company
1-800-FOR-DEPO