AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC. et al v. PUBLIC.RESOURCE.ORG, INC.
Filing
60
MOTION for Summary Judgment Filed by AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC., AMERICAN PSYCHOLOGICAL ASSOCIATION, INC., NATIONAL COUNCIL ON MEASUREMENT IN EDUCATION, INC. (Attachments: #1 Statement of Facts Points of Authority, #2 Statement of Facts Statement of Undisputed Facts, #3 Declaration Declaration of Jonathan Hudis, #4 Exhibit Ex. A, #5 Exhibit Ex. B, #6 Exhibit Ex. C, #7 Exhibit Ex. D, #8 Exhibit Ex. E, #9 Exhibit Ex. F, #10 Exhibit Ex. G, #11 Exhibit Ex. H, #12 Exhibit Ex. I, #13 Exhibit Ex. J, #14 Exhibit Ex. K, #15 Exhibit Ex. L, #16 Exhibit Ex. M, #17 Exhibit Ex. N, #18 Exhibit Ex. O, #19 Exhibit Ex. P, #20 Exhibit Ex. Q, #21 Exhibit Ex. R, #22 Exhibit Ex. S, #23 Exhibit Ex. T, #24 Exhibit Ex. U, #25 Exhibit Ex. V-1, #26 Exhibit Ex. V-2, #27 Exhibit Ex. W, #28 Exhibit Ex. X, #29 Exhibit Ex. Y, #30 Exhibit Ex. Z, #31 Exhibit Ex. AA, #32 Exhibit Ex. BB, #33 Exhibit Ex. CC, #34 Exhibit Ex. DD, #35 Exhibit Ex. EE, #36 Exhibit Ex. FF-1, #37 Exhibit Ex. FF-2, #38 Exhibit Ex. FF-3, #39 Exhibit Ex. FF-4, #40 Exhibit Ex. FF-5, #41 Exhibit Ex. FF-6, #42 Exhibit Ex. GG, #43 Exhibit Ex. HH, #44 Exhibit Ex. II, #45 Exhibit Ex. JJ, #46 Exhibit Ex. KK, #47 Exhibit Ex. LL, #48 Exhibit Ex. MM, #49 Declaration Declaration of Marianne Ernesto, #50 Exhibit Ex. NN, #51 Exhibit Ex. OO, #52 Exhibit Ex. PP, #53 Exhibit Ex. QQ, #54 Exhibit Ex. RR, #55 Exhibit Ex. SS, #56 Exhibit Ex. TT, #57 Exhibit Ex. UU, #58 Exhibit Ex. VV, #59 Exhibit Ex. WW, #60 Exhibit Ex. XX, #61 Exhibit Ex. YY, #62 Exhibit Ex. ZZ, #63 Exhibit Ex. AAA, #64 Exhibit Ex. BBB, #65 Exhibit Ex. CCC, #66 Exhibit Ex. DDD, #67 Exhibit Ex. EEE, #68 Exhibit Ex. FFF, #69 Exhibit Ex. GGG, #70 Exhibit Ex. HHH, #71 Exhibit Ex. III, #72 Exhibit Ex. JJJ, #73 Declaration Declaration of Lauress Wise, #74 Exhibit Ex. KKK, #75 Exhibit Ex. LLL, #76 Declaration Declaration of Wayne Camara, #77 Exhibit Ex. MMM, #78 Declaration Declaration of Felice Levine, #79 Exhibit Ex. NNN, #80 Exhibit Ex. OOO (Public Version), #81 Exhibit Ex. PPP, #82 Exhibit Ex. QQQ, #83 Exhibit Ex. RRR, #84 Exhibit Ex. SSS, #85 Exhibit Ex. TTT-1, #86 Exhibit Ex. TTT-2, #87 Exhibit Ex. UUU, #88 Declaration Declaration of Kurt Geisinger, #89 Declaration Declaration of Dianne Schneider, #90 Text of Proposed Order Proposed Order, #91 Certificate of Service Certificate of Service)(Hudis, Jonathan). Added MOTION for Permanent Injunction on 12/22/2015 (td).
EXHIBIT BB
Case No. 1:14-cv-00857-TSC-DAR
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
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 2
1
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
(703) 413-3000
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
(415) 875-2300
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
(415) 655-1303
94111
24
25
ALSO PRESENT:
Sean McGrath, Video Operator
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 3
1
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
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 4
1
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
(202) 289-2260.
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
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 5
1
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
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 6
1
in the nature of what you just described, have you
2
been deposed at all in any other cases?
3
A.
Yes, yes.
I've been deposed in the case
4
Davydiuk, D-a-v-y-d-i-u-k, versus Internet Archive
5
and Internet Archive Canada relating to a copyright
6
infringement case against Internet Archive.
7
8
Q.
Did that relate to the posting of certain
materials on Internet Archive's website?
9
A.
It did.
10
Q.
Have you told me all the types of matters
11
in which you've been deposed before?
12
A.
Yes.
13
Q.
So altogether about six times?
14
A.
Yes.
15
Q.
Since you've been deposed before,
16
Mr. Butler, I'll make my rules of the road brief.
17
Do you understand that if any question I
18
pose to you is unclear to you or you didn't hear
19
it, you can ask me to repeat or rephrase it?
20
A.
Yes.
21
Q.
Do you understand that all of your answers
22
to my questions have to be verbal?
23
A.
Yes.
24
Q.
Do you understand that if you would like
25
to take a break during the deposition, you may do
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 7
1
so?
2
A.
Yes.
3
Q.
The only exception is if I have a question
4
pending, you must answer the question before you
5
take the break or speak with your attorney.
6
A.
Yes.
7
Q.
Is there any reason, such as you're taking
8
medication, illness, any other reason why you can't
9
testify completely, accurately and truthfully
10
11
today?
A.
No.
12
(Plaintiffs' Exhibit 1 marked for
13
identification.)
14
MR. HUDIS:
15
Q.
Mr. Butler, I will now show you what's
16
been marked as Exhibit 1, and it is a subpoena to
17
testify at a deposition.
18
Have you seen this subpoena before?
19
A.
Yes.
20
Q.
When for the first time did you see the
21
22
23
24
25
subpoena in front of you?
A.
I saw the subpoena when it was served to
Internet Archive in late October.
Q.
If you could turn to the fourth and fifth
pages, there is a list of deposition topics.
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 8
1
What, if anything, did you do to prepare
2
to testify on the topics listed on the fourth and
3
fifth pages of the deposition subpoena of
4
Exhibit 1?
5
MS. LU:
Just to be clear for the record,
6
since the pages aren't numbered, we're talking
7
about the page starting with Exhibit A?
8
MR. HUDIS:
9
Exhibit 1, correct.
10
Exhibit A to deposition
THE WITNESS:
Thank you.
To prepare for the
11
deposition, I, upon receipt of the subpoena,
12
immediately identified and spoke with the staff who
13
may have had communication with Public Resource or
14
the standard organizations.
15
delete any of their e-mail and to search for
16
strings relating to these organizations and the
17
standards document specified and to alert me if
18
they found any matches for -- for those strings.
19
20
I also spoke with my attorneys at
Greenberg Traurig.
21
22
23
I asked them to not
MR. HUDIS:
Q.
Other than speaking with your attorneys,
who did you speak with at Internet Archive?
24
A.
I spoke with Brewster Kahle,
25
Q.
Spell his last name.
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 9
1
A.
B-r-e-w-s-t-e-r, K-a-h-l-e.
2
Q.
And who is he?
3
A.
He's a founder of Internet Archive.
4
Q.
And what was the nature of that
5
6
discussion?
A.
It was to alert him of the subpoena, and
7
also the scope of the subpoena, and to ask him to
8
search his e-mail.
9
Q.
Did he search his e-mail?
10
A.
Yes.
11
Q.
What did he find?
12
A.
He did not find any correspondence with
13
14
these organizations relating to the standards.
Q.
When you say the organizations, there's
15
three plaintiffs in this lawsuit.
16
just so we have a working definition, I'll say
17
their full names, and then I will say their
18
acronyms.
19
And I'll say,
So the first plaintiff is American
20
Educational Research Association, Inc., they're
21
known as AERA; the American Psychological
22
Association, Inc., they're known as APA; and the
23
National Council on Measurement in Education, Inc.,
24
and they're known as NCME.
25
Do we understand each other?
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 10
1
A.
That's right.
2
Q.
So after speaking with Mr. Kahle, he did
3
not find any correspondence exchanged with any of
4
AERA, APA or NCME?
5
A.
Correct.
6
Q.
Did he find any correspondence exchanged
7
with Public.Resource.Org, Inc., which we will refer
8
to as Public Resource?
9
A.
Yes.
10
Q.
What did he find?
11
A.
He found e-mails between himself and Carl
12
13
14
Malamud.
Q.
All right.
Have those e-mails been
produced to us?
15
A.
No.
16
Q.
Okay.
17
A.
Those e-mails did not mention and did not
18
19
And why is that?
have any relation to the 1999 standards.
Q.
Okay.
So we understand the 1999
20
standards, I actually have the book with me, and
21
I'll read the title into the record.
22
Standards for Educational and Psychological
23
Testing, bearing a copyright of 1999.
24
25
It's the
Do you understand, Mr. Butler, that we
will refer to that book as the 1999 standards
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 11
1
2
during this deposition?
A.
3
4
MS. LU:
Are we entering that as an
exhibit?
5
6
Yes, I do.
MR. HUDIS:
Q.
No, no.
So all the e-mails that Mr. Kahle
7
exchanged with Mr. Malamud did not mention the
8
1999 standards?
9
A.
Correct.
10
Q.
Did they mention any of the plaintiffs in
11
this lawsuit?
12
A.
No.
13
Q.
Do you remember what those e-mails had to
14
do with?
15
MS. LU:
16
THE WITNESS:
Objection, relevance.
There were many e-mails
17
relating to -- to a broad number of topics.
18
don't remember any specific offhand.
19
20
I
MR. HUDIS:
Q.
Did any of those e-mails, to the best of
21
your recollection, have to do generally with
22
uploading by Public Resource standards or codes to
23
Internet Archive's website?
24
MS. AHMAD:
25
MS. LU:
Objection --
Objection, vague and ambiguous.
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 12
1
I'm sorry.
2
3
MS. AHMAD:
of the deposition topics.
4
5
THE WITNESS:
No, we did not find any
e-mails that related to the uploading of standards.
6
7
Objection, outside the scope
MR. HUDIS:
Q.
Did you speak to anyone else, Mr. Butler,
8
to prepare for this deposition other than Mr. Kahle
9
or your counsel?
10
MS. LU:
11
testimony.
12
13
14
15
16
Objection, misstates prior
MR. HUDIS:
Q.
Okay.
Did you speak to anyone else to prepare
for your deposition today?
A.
I spoke with Alexis Rossi who's our
director of collections.
17
Q.
And how do you spell Rossi?
18
A.
R-o-s-s-i.
19
Q.
And what was the nature of that
20
21
22
conversation or conversations?
A.
I asked her to search her e-mail account
for any communication responsive to the subpoena.
23
Q.
Did she find any?
24
A.
No.
25
Q.
Did you speak with anyone else to prepare
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 13
1
for this deposition?
2
A.
No.
3
Q.
So, other than your counsel, the total
4
number of people that you spoke with to prepare for
5
your deposition were Mr. Kahle and Ms. Rossi?
6
A.
Correct.
7
Q.
To prepare for your deposition, did you
8
speak with anyone at Public Resource?
9
A.
No.
10
Q.
To prepare for you deposition, did you
11
speak with anyone who is part of Public Resource's
12
legal team?
13
14
A.
Law firms?
We spoke with Corynne McSherry from the
Electronic Frontier Foundation to --
15
Q.
And what was -- all right.
16
A.
And alerted her of the fact that we had
17
18
19
received the subpoena.
Q.
And did you discuss anything else with
Ms. McSherry?
20
MS. LU:
21
MS. AHMAD:
22
I'm going to -I want to object on the basis
of privilege.
23
MR. HUDIS:
24
MS. LU:
25
Go ahead.
Privilege between whom?
If I understand this correctly,
and I think you probably know this better than I
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 14
1
do, I believe that there -- the communication
2
between Mr. Butler and Corynne McSherry is the
3
subject of privilege.
4
5
MR. HUDIS:
MS. LU:
7
MS. AHMAD:
11
I think it's attorney-client.
It's attorney-client
privileged.
9
10
How is it --
how is it privileged?
6
8
On what grounds?
MR. HUDIS:
Q.
So you're saying Corynne McSherry and EFF
are Internet Archive's attorneys?
12
A.
That's correct.
13
Q.
For what purpose?
Because you're being
14
represented today, and for the purposes of the
15
subpoena, by Greenberg Traurig, so --
16
MS. LU:
I think that what EFF has
17
represented Internet Archive on itself is a subject
18
of privilege unless it's a public matter, and I
19
know there are some public matters.
20
know off the top of my head what they are.
21
MS. AHMAD:
Right.
But I don't
So Greenberg Traurig
22
is representing Internet Archive for the purpose of
23
the subpoena, but prior to that, Internet Archive
24
was represented by -- or still are, but the
25
communications between them are privileged.
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 15
1
MS. LU:
My understanding is that EFF has
2
represented Internet Archive on occasion through
3
the years, though I don't know the specifics of
4
which matters, and I don't know which matters are
5
public.
6
MR. HUDIS:
Okay.
So let's confine
7
ourselves to your preparation for this deposition
8
and the deposition subpoena.
9
Q.
Other than alerting Ms. McSherry about the
10
fact that Internet Archive received plaintiffs'
11
subpoena, did you have any other discussions with
12
Ms. McSherry to prepare for this deposition?
13
A.
No.
14
MR. HUDIS:
15
(Plaintiffs' Exhibit 2 marked for
16
identification.)
17
MR. HUDIS:
Mark this one.
Just for the record, the
18
deposition subpoena has been marked already as
19
Exhibit 1, and the document subpoena addressed to
20
Internet Archive has just been marked as Exhibit 2.
21
Q.
Mr. Butler, I now show you what's been
22
marked as deposition Exhibit 2 and ask if you've
23
seen this document before.
24
A.
Yes.
25
Q.
When for the first time did you see the
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 16
1
2
3
4
document subpoena of Exhibit 2?
A.
When it was served to Internet Archive in
late October.
Q.
What, if anything, did you do to assist
5
Internet Archive in complying with the document
6
subpoena as to the categories of materials listed
7
on the fifth and sixth pages of the subpoena?
8
9
And so we're clear, for the record, that
would be the fifth and sixth pages of the subpoena
10
which is -- and the document demand starts on the
11
second page of Exhibit A to Exhibit 2.
12
So I'll repeat the question, Mr. Butler.
13
What, if anything, did you do to assist
14
Internet Archive in complying with the document
15
subpoena?
16
17
A.
I asked Mr. Kahle and Ms. Rossi to search
their e-mail accounts, as I mentioned.
18
Q.
Uh-huh.
19
A.
I searched my own e-mail account.
I
20
searched our general incoming e-mail account,
21
info@archive.org.
22
account that's used to correspond with -- with
23
folks who have sent e-mails to info@archive.org to
24
which e-mails may be passed along called
25
inforeply@archive.org.
And I also searched an e-mail
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 17
1
I also searched physical files when we
2
have all of our physical records relating to
3
take-down requests.
4
5
Q.
time.
6
7
Let's take your search areas one at a
In complying with the subpoena, did you
find anything in your own e-mail store?
8
A.
Yes, I did.
9
Q.
And what did you find?
10
A.
I found an e-mail from Carl Malamud
11
relating to the 1999 standards.
12
Q.
Was this just one e-mail or many e-mails?
13
A.
It was one e-mail.
14
Q.
Do you remember the nature of that e-mail?
15
A.
It -- it addressed the 1999 standards.
16
17
I
don't recall the exact content of the e-mail.
Q.
And in searching the e-mail box
18
info@archive.org, did you find any responsive
19
documents?
20
A.
No.
21
Q.
When you searched the mailbox
22
inforeply@archive.org, did you find any documents?
23
A.
No.
24
Q.
When you searched your physical files, did
25
you find any documents?
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 18
1
A.
No.
2
Q.
Besides these e-mails boxes and your
3
physical files, did you conduct any other searches
4
to comply with the document subpoena?
5
A.
No.
6
Q.
Do you remember what documents were
7
8
9
collected for production?
A.
Yes, the -- the e-mail that I had received
from Carl Malamud --
10
Q.
Uh-huh.
11
A.
-- found in my own e-mail account.
12
Q.
Uh-huh.
13
A.
We also supplied documents from our site,
14
archive.org.
15
Q.
Uh-huh.
16
A.
One document was called the item history
17
for the 1999 standards.
18
Q.
Uh-huh.
19
A.
It lists all of the technical tasks
20
submitted and logged for the item.
21
submitted detailed technical logs for each
22
individual task.
23
24
25
Q.
Uh-huh.
So that was -- so that was also
part of your search?
A.
And we also
You searched for these logs?
That's correct.
Yes.
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 19
1
Q.
What else did you search for?
2
A.
We also searched for the number of -- for
3
our record of downloads for the item.
4
Q.
And what do you mean by "downloads"?
5
A.
Downloads in the context of our site,
6
meaning a count of the number of unique
7
IP addresses -- allow me to start over.
8
9
A count of the number of accesses of the
item's pages by an IP address where multiple
10
accesses from the same IP address in a day as
11
defined by UTC time are counted as only one
12
download.
13
14
Q.
When you say "IP address," that's Internet
protocol address?
15
A.
Correct.
16
Q.
And what do you mean by "access"?
17
A.
I mean that there was an HTTP request for
18
the -- for one of the item's pages that was
19
fulfilled by archive.org.
20
21
22
Q.
So I have to ask this again, Mr. Butler,
because I do not want to put words in your mouth.
When you say you have a count of the
23
number of downloads, if you were explaining that to
24
me who has much less knowledge of Internet parlance
25
than you ever do, what does that mean?
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What does
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December 2, 2014
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that count of downloads mean?
2
A.
The count of downloads means --
3
MS. LU:
4
MR. HUDIS:
Objection, argumentative.
Okay.
5
Q.
You may answer.
6
A.
As I understand it, the count of downloads
7
means any time that a computer with a unique
8
IP address or a server or any -- it could be an
9
automated program, it could be a crawler from
10
Google, and we actually understand that a great
11
many of the hits that we record are very likely
12
from automated programs, not from individuals.
13
So it would -- it would count requests
14
submitted from those IP addresses that were then
15
served by Internet Archive where we returned the --
16
the file information that they requested in a given
17
URL.
18
individual requests that were fulfilled from
19
individuals using computers as well.
And it would also count individual accesses,
20
We don't have a way to determine
21
whether -- which -- we don't have a way to
22
determine what percentage of the download count
23
that we obtained for this item would have been
24
submitted by an automated program or an individual.
25
Q.
In the context of download, does that mean
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call up a web page to view or to take material on a
2
web page and copy it onto another computer?
3
A.
It could be either one.
So there are
4
texts files that might be displayed in a browser,
5
PDF files that might be displayed in a browser but
6
are not necessarily downloaded by the browser to
7
the default folder on the local machine.
8
9
10
Q.
So your download count does not
distinguish between a mere view versus a copying of
material onto another computer?
11
MS. LU:
12
MR. HUDIS:
13
14
Q.
Objection, vague and ambiguous.
Do you understand the question?
I can
rephrase if you wish.
15
A.
If you would, please.
16
Q.
Sure.
So the download count, does it
17
distinguish between the merely viewing a web page
18
versus taking the content on the web page and
19
count -- and copying it to another computer?
20
MS. LU:
21
MR. HUDIS:
Objection, vague and ambiguous.
22
Q.
Do you understand the question?
23
A.
No, I'm not certain there -- there may be
24
25
browser cache or -Q.
Uh-huh.
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1
A.
-- recording of a file for temporary
2
purposes versus downloading of a file to someone's
3
hard drive for -- for use until it's actively
4
deleted.
5
Q.
So you have no way of determining whether
6
it's a cache copy or taking a file from one place
7
to another copy?
8
"download."
9
MS. LU:
10
11
12
Objection, vague and ambiguous.
MR. HUDIS:
Q.
Right, right.
So please distinguish for me the follow --
what terms you would use for the following things.
13
14
I'm purposely not using the term
I see something on a website and all I
want to do is see it.
What do you call that?
15
A.
Viewing a page.
16
Q.
Viewing.
17
Okay.
I see something on a website and I want to
18
make a copy of it from where I see it on the
19
website to the hard drive on my computer.
20
you call that?
21
MS. LU:
22
What do
MR. HUDIS:
23
Q.
Objection, vague and ambiguous.
I see a file located on a web page and I
24
want to make a copy of it and put it on my hard
25
drive.
What do you call that?
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1
MS. LU:
2
MR. HUDIS:
Objection, vague and ambiguous.
3
Q.
You may answer.
4
A.
So as I understand, the term "download"
5
can be used the multiple ways.
6
Q.
Right.
7
A.
And so in -- in some user's mind, the
8
process you described could be defined as
9
downloading.
10
Q.
Uh-huh.
11
A.
However, our -- our recorded number which
12
we formally refer to as a download count does not
13
distinguish between viewing and downloading in this
14
instance for specific file -- for certain file
15
types.
16
MR. HUDIS:
17
VIDEO OPERATOR:
18
Off the record.
Just a second.
The time
is 9:37 a.m., and we are off the record.
19
(Discussion off the record.)
20
(Plaintiffs' Exhibit 3 marked for
21
identification.)
22
VIDEO OPERATOR:
23
and we are on the record.
24
25
The time is 9:39 a.m.,
MR. HUDIS:
Q.
Mr. Butler, have you described for me all
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of the ways that Internet Archive searched and
2
collected documents to comply with the document
3
subpoena on Exhibit 2?
4
A.
Yes.
5
Q.
Mr. Butler, I now show you what has been
6
marked as deposition Exhibit 3.
7
8
Do you recognize at the bottom of the page
your own line biography?
9
A.
Yes.
10
Q.
And it says here you have twin degrees in
11
Environmental Science and Film Studies.
12
A.
That's correct.
13
Q.
Are those Bachelor's or Master's degrees?
14
A.
Bachelor's degrees.
15
Q.
What's the highest level of your
16
education?
17
A.
Bachelor's degree.
18
Q.
In these two -- in these two subject
19
matters on your bio?
20
A.
Yes.
21
Q.
When did you receive these degrees?
22
A.
2002.
23
Q.
And did you have a double major?
24
A.
Yes.
25
Q.
Did you have a minor?
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December 2, 2014
San Francisco, CA
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1
A.
No.
2
Q.
Did you have a concentration while in
3
school?
4
A.
5
6
7
Within Environmental Science, I had a
concentration in Social Sciences.
Q.
Do you have any other degrees or
certificates from formal study?
8
A.
No.
9
Q.
What, if any, background do you have in
10
computer programming, either by education or work
11
history?
12
A.
I have none via formal education.
Through
13
my work at Internet Archive, I have worked around
14
programmers and developers.
15
Q.
What do you mean by "work around"?
16
A.
I've worked as part of the Internet
17
Archive team in the same office space with
18
programmers and developers.
19
them on various questions of user support and
20
issues of taking material down when appropriate.
21
22
Q.
I have worked with
When you say "taking down," you mean from
Internet Archive's website?
23
A.
Correct.
24
Q.
Have you done any computer programming
25
yourself?
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December 2, 2014
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1
A.
No.
2
Q.
Have you taken any courses whatsoever on
3
computer programming?
4
A.
No.
5
Q.
Have you taken -- scratch the question.
6
7
8
9
Have you received informal training from
anyone at Internet Archive in computer programming?
A.
I've received informal explanations from
time to time, various types of codes, mostly
10
related to HTML, or JavaScript, a composition of
11
web pages.
12
instruction about submitting a query from a command
13
line interface.
14
15
I've also received some informal
MR. HUDIS:
Could you repeat his answer.
Submitting a query from --
16
(Record read by Reporter.)
17
MR. HUDIS:
18
Q.
So these informal explanations, would that
19
qualify you to program in either HTML, Java or web
20
page composition?
21
A.
No.
22
Q.
Now, when you say submitting a query to a
23
24
25
command line interface, where do you do that?
A.
I -- in these instances, I did that from
the Mac Terminal application.
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December 2, 2014
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1
Q.
And that's at Internet Archive?
2
A.
That's on a Mac computer located at
3
4
5
Internet Archive.
Q.
And it's hooked into Internet Archive's
computer systems?
6
A.
Yes.
7
Q.
And do you know what software is used to
8
submit that query command?
9
MS. LU:
10
11
Objection, vague and ambiguous.
MR. HUDIS:
Q.
How do you submit a query command line?
12
MS. LU:
13
MR. HUDIS:
Objection, vague and ambiguous.
14
Q.
You may answer.
15
A.
The command was dictated to me by -- by
16
the engineer.
17
MS. LU:
18
MR. HUDIS:
And objection also, relevance.
19
Q.
An Internet Archive engineer?
20
A.
Correct.
21
Q.
Did you use -- did you get such dictation
22
to run the searches to comply with plaintiffs'
23
document subpoena?
24
25
A.
Yes, in order to search for our records of
the download count, one of the Internet Archive
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engineers dictated the query to me so I could
2
search for it as he sat next to me.
3
Q.
Who was the engineer?
4
A.
His name was Ralph Muehlen.
5
Q.
Spell his last name.
6
A.
M-u-e-h-l-e-n.
7
Q.
And do you -- when you were entering this
8
command into the Mac Terminal, do you know what
9
software you were using?
10
A.
I was using a Mac operating system.
11
Q.
Any particular software on the Mac
12
13
operating system?
A.
Within the Mac operating system, I was
14
using the application Terminal.
15
name of the application.
16
Q.
Terminal is the
And so with Terminal, in this instance,
17
dictated by Mr. Muehlen, you entered in a command
18
and it gave you back information?
19
A.
That's correct.
20
Q.
Mr. Butler, when did you first become
21
employed by Internet Archive?
22
A.
In February of 2009.
23
Q.
What was your position then?
24
A.
Office manager.
25
Q.
Is that the position you still hold today?
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1
A.
Yes.
2
Q.
What are your duties and responsibilities
3
at Internet Archive as an office manager?
4
A.
Some of them are clerical and relate to
5
office functions and managing our team of
6
administrative assistants.
7
Q.
To do what?
8
A.
To -- to perform reception duties,
9
10
inventory duties, purchasing duties, office
maintenance duties.
11
12
Q.
What other responsibilities do you have as
office manager at Internet Archive?
13
A.
I am primary point of contact for
14
take-down requests and requests for information
15
from law enforcement and attorneys.
16
Q.
And when you say you're the point of
17
contact for take-down requests, is that a request
18
to take down material from Internet Archive's
19
website?
20
A.
That's correct.
21
Q.
What do you do?
22
A.
I receive the take-down request, review
23
it.
24
something that should be taken down, I will process
25
that and take down the material.
If it meets our basic criteria for -- for
And if -- and
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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.
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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.
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1-800-FOR-DEPO
Its
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December 2, 2014
San Francisco, CA
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1
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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December 2, 2014
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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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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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December 2, 2014
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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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December 2, 2014
San Francisco, CA
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A.
Yes, any -- any individual or institution
2
who -- who uses Internet Archive's website as a
3
visitor agrees to these terms of use.
4
MR. HUDIS:
5
Q.
6
of use?
7
A.
No.
8
Q.
Who participated in writing these terms of
9
use?
10
11
Did you participate in writing these terms
MS. LU:
Objection, lack of personal
knowledge.
12
MR. HUDIS:
13
Q.
If you know.
14
A.
I don't know.
15
Q.
And the date of these terms of use says
16
10 March, 2001.
Do you see that?
17
A.
Yes.
18
Q.
To the best of your knowledge, are these
19
terms of use still in effect today?
20
A.
Yes.
21
Q.
Were these terms of use, to the best of
22
your knowledge, in effect between 2012 and 2014?
23
A.
Yes.
24
Q.
Must individuals not employed with
25
Internet Archive or outside organizations agree to
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these terms of use of Exhibit 5 before they're
2
allowed to post content to Internet Archive's
3
website?
4
A.
Yes.
5
Q.
Why?
6
7
MS. LU:
Objection, lack of personal
knowledge.
8
MR. HUDIS:
9
Q.
If you know.
10
A.
I'm not the one who made that decision,
11
and I -- I haven't spoken to those who did to --
12
and, therefore, wouldn't -- wouldn't know exactly
13
why that determination was made.
14
Q.
How are nonemployee individuals and
15
outside companies or organizations made to comply
16
with these terms of use before they're allowed to
17
post content?
18
19
Is it a click-wrap?
What is it?
20
21
MS. LU:
24
25
Objection, vague and ambiguous
and compound.
22
23
Is it a shrink-wrap?
MR. HUDIS:
All right.
I will reask the
question.
Q.
In what form are nonemployee individuals
or outside companies mandated to comply with these
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December 2, 2014
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terms of use before they're allowed to post content
2
to Internet Archive's website?
3
MS. LU:
4
MR. HUDIS:
Objection, vague and ambiguous.
5
Q.
You may answer.
6
A.
Upon signing up for an account, an
7
individual is presented with a check box that
8
indicates that they've read and agreed to these
9
terms of use.
10
11
Q.
And they have to click on that before they
can go on to post?
12
MS. LU:
13
MR. HUDIS:
Vague and ambiguous.
14
Q.
You may answer.
15
A.
That is correct.
16
Q.
What type of oversight, if any, does
17
Internet Archive have over these outside
18
nonemployee individuals who publish content to
19
Internet Archive's website?
20
MS. LU:
21
MS. AHMAD:
22
Objection --
ambiguous.
23
MS. LU:
24
MR. HUDIS:
25
Objection, vague and
Q.
And argumentative.
Okay.
When an outside individual or company
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December 2, 2014
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publishes content to Internet Archive's website, do
2
you monitor the content before it's posted?
3
4
MS. LU:
evidence.
5
6
Objection, assumes facts not in
MR. HUDIS:
Q.
You may answer.
7
MS. LU:
8
THE WITNESS:
9
Vague and ambiguous.
A general user account's
posts are not reviewed prior to their -- their
10
being posted and automatically processed by the
11
archive.org website.
12
13
14
15
16
MR. HUDIS:
Q.
Is the content reviewed by Internet
Archive after posting?
A.
The content is not reviewed unless it's
brought to our specific attention.
17
Q.
By whom?
18
A.
It may be brought to our attention by any
19
number of individuals.
20
e-mailed us to our info@archive.org e-mail address.
21
It could be somebody who called about the -- the
22
material.
23
Occasionally, it may be someone who has a complaint
24
about the material.
25
Q.
It could be somebody who
Typically, it's a user of the website.
Does Internet Archive have a policy, if
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any, about monitoring outside uploaded content to
2
its website?
3
MS. LU:
4
MR. HUDIS:
Objection, vague and ambiguous.
5
Q.
You may answer.
6
A.
I'm not aware of any policy.
7
Q.
What is the process by which a nonemployee
8
individual would post content onto Internet
9
Archive's website?
10
11
MS. LU:
Objection, lacks personal
knowledge.
12
THE WITNESS:
Generally, their user
13
account would be used to -- to upload material.
14
They would have an opportunity to submit files and
15
metadata pertaining to those files to be posted on
16
one of our standard details pages.
17
18
19
MR. HUDIS:
Q.
And before they start the process of
uploading to a details page, they have to log in?
20
A.
That's correct.
21
Q.
And they have a user name and password?
22
A.
That's correct.
23
Q.
And that would have to be authenticated by
24
Internet Archive before they could proceed with the
25
upload?
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December 2, 2014
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A.
Yes.
2
Q.
When the material -- once the material is
3
uploaded, is there any formatting of the material
4
done in order for it to reside on Internet
5
Archive's website?
6
MS. LU:
7
MR. HUDIS:
Objection, vague and ambiguous.
8
Q.
You may answer.
9
A.
Can you define "formatting"?
10
Q.
Yes.
11
To put it in a form such that it can
be viewed on Internet Archive's website.
12
MS. LU:
13
THE WITNESS:
Objection, vague and ambiguous.
Certain file types may
14
automatically trigger the system to create
15
derivative file formats.
16
document may be supplied in a PDF format, and the
17
system may automatically generate other formats of
18
that text, including an EPUB file.
19
spelling.
20
file extension.
21
22
23
For instance, a text
A format called DjVu.
E-P-U-B is the
D-j-V-u-is the
Also, a plain text file.
MR. HUDIS:
Q.
And is that formatting done automatically
by Internet Archive's computer systems?
24
A.
It is.
25
Q.
So that we have a basic working definition
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1-800-FOR-DEPO
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December 2, 2014
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so I don't have to completely define this over and
2
over again, I'm going to refer to a submitter as an
3
outside, nonemployee person or organization.
4
A.
Okay.
5
Q.
All right.
Okay?
6
Does Internet Archive process
documents after they are posted by a submitter?
7
MS. LU:
8
MR. HUDIS:
Objection, vague and ambiguous.
9
Q.
You may answer.
10
A.
If creating derivative file formats and
11
arranging the item -- the submitted files so that
12
they may be viewed on a web page along with the
13
submitted metadata is considered processing, those
14
are things that the Internet Archive's website
15
performs.
16
Q.
17
You just anticipated my next question.
And that process is done automatically?
18
A.
That's correct.
19
Q.
So we have a working definition, what is a
A.
A URL is the address that corresponds to a
20
21
URL?
22
web page.
23
Technically it, as I understand it, it generally
24
corresponds to a location on a web server.
25
Q.
It may correspond to a web page.
Does Internet Archive control the URL name
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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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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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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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December 2, 2014
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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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December 2, 2014
San Francisco, CA
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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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December 2, 2014
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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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San Francisco, CA
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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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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 carl@media.org.
20
21
MR. HUDIS:
Q.
Do you know whether carl@media.org 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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December 2, 2014
San Francisco, CA
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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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December 2, 2014
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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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December 2, 2014
San Francisco, CA
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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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December 2, 2014
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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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1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
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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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December 2, 2014
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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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1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
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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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1-800-FOR-DEPO
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December 2, 2014
San Francisco, CA
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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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December 2, 2014
San Francisco, CA
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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.
carl@media.org."
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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December 2, 2014
San Francisco, CA
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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
carl@media.org."
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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December 2, 2014
San Francisco, CA
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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 carl@media.org 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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1-800-FOR-DEPO
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December 2, 2014
San Francisco, CA
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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.
Alderson Reporting Company
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December 2, 2014
San Francisco, CA
Page 76
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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1-800-FOR-DEPO
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December 2, 2014
San Francisco, CA
Page 77
1
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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December 2, 2014
San Francisco, CA
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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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December 2, 2014
San Francisco, CA
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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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1-800-FOR-DEPO
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December 2, 2014
San Francisco, CA
Page 80
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 carl@media.org.
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 carl@media.org with Carl Malamud.
MR. HUDIS:
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December 2, 2014
San Francisco, CA
Page 81
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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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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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Page 85
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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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December 2, 2014
San Francisco, CA
Page 86
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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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Christopher Butler
December 2, 2014
San Francisco, CA
Page 88
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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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Christopher Butler
December 2, 2014
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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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December 2, 2014
San Francisco, CA
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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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December 2, 2014
San Francisco, CA
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prior testimony.
2
And argumentative.
THE WITNESS:
The logs in Exhibit 8 have a
3
recorded submitter of carl@media.org 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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Page 93
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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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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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Page 95
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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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Page 97
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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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1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 99
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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.
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 100
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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.
Alderson Reporting Company
1-800-FOR-DEPO
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December 2, 2014
San Francisco, CA
Page 101
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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.
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
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:
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
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
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 105
1
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.
Alderson Reporting Company
1-800-FOR-DEPO
It may create
Christopher Butler
December 2, 2014
San Francisco, CA
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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1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 107
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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.
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
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
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
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
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
Christopher Butler
December 2, 2014
San Francisco, CA
Page 112
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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
Christopher Butler
December 2, 2014
San Francisco, CA
Page 113
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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
Christopher Butler
December 2, 2014
San Francisco, CA
Page 114
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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
Christopher Butler
December 2, 2014
San Francisco, CA
Page 115
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with the performing of the changes made to the
2
primary server also being made to the backup
3
server.
4
5
MR. HUDIS:
Q.
Based upon your reading of Exhibit 8,
6
which were the upload logs, do you know on how many
7
servers the item gov.law.aera.standards.1999 were
8
uploaded to, within Internet Archive?
9
MS. LU:
Objection, lack of personal
10
knowledge, misstates prior testimony, assumes facts
11
not in evidence, and vague and ambiguous.
12
THE WITNESS:
I don't know for certain how
13
many servers this may have -- the files and
14
metadata may have resided on.
15
archive.org items reside on a primary server and a
16
backup server at any given time.
17
18
I know generally
MR. HUDIS:
Q.
And, according to the make_dark command of
19
Exhibit 9, task 315793300, the make_dark command
20
was associated with server ia600500 and
21
synchronized to server ia700500, is that correct?
22
23
24
25
MS. LU:
Objection, lack of personal
knowledge.
THE WITNESS:
The -- the task log states
that the servers upon which this command was
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
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performed are server named ia600500 and backup
2
server named ia700500.
3
4
MR. HUDIS:
Q.
Even though the make_dark command was
5
performed on these two servers, could Internet
6
Archive's employees still access the 1999 standards
7
on those two servers?
8
9
MS. LU:
Objection, lack of personal
knowledge, and assumes facts not in evidence.
10
THE WITNESS:
I know that, via the
11
archive.org interface, the standards are not
12
accessible to -- to Internet Archive employees and
13
the public.
14
would be a way to -- to access the standards via
15
another method.
16
17
I don't know for certain if there
MR. HUDIS:
Q.
After the make_dark command was performed,
18
is the file still located on Internet Archive's
19
primary and backup servers?
20
the file identified by gov.law.aera .standards
21
.1999.
22
23
MS. LU:
And that's -- that's
Objection, lack of personal
knowledge.
24
THE WITNESS:
25
this particular item.
I don't know with respect to
Generally speaking, an item
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 117
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that has been made dark still resides on the
2
servers.
3
MR. HUDIS:
4
5
Q.
If you notice within Exhibit 9, this task
315793300, there is a comment.
6
Do you see that?
7
MR. HUDIS:
8
Counsel, permission to point
to the witness?
9
MS. AHMAD:
Yes.
10
THE WITNESS:
11
listed in the -- the task log.
12
I see a -- a comment tag
MR. HUDIS:
13
Q.
And what does the comment say after the
15
A.
Comment says, "pending outcome of
16
litigation."
17
Q.
14
tag?
18
19
MS. LU:
THE WITNESS:
The comment is associated
with a submitter carl@media.org.
22
23
Objection, lack of personal
knowledge.
20
21
Do you know who wrote that comment?
MR. HUDIS:
Q.
Do you know whether counsel was involved
24
in the writing of this comment on this task of
25
Exhibit 9?
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 118
1
2
MS. LU:
Objection, lack of personal
knowledge, and vague and ambiguous as to "counsel."
3
THE WITNESS:
4
MR. HUDIS:
5
Q.
No, I don't know.
Do you know whether inserting a comment of
6
this type, "pending outcome of litigation," is a --
7
sorry, is an approved technique for making content
8
dark from an Internet Archive server?
9
10
MS. LU:
Objection, lack of personal
knowledge.
11
MR. HUDIS:
12
MS. LU:
13
MR. HUDIS:
14
15
Sure.
And vague and ambiguous.
All right.
I'll reask the
question.
Q.
Is inserting a comment of this type,
16
"pending outcome of litigation," an approved
17
technique for removing content from an Internet
18
Archive server?
19
MS. LU:
Objection, vague and ambiguous,
20
assumes facts not in evidence, and lack of personal
21
knowledge.
22
MR. HUDIS:
23
Q.
Do you understand the question?
24
A.
I'll say that the -- a submission of a
25
comment is something that can be done and is not
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 119
1
atypical when an item is made dark.
2
Q.
Is not typical or is not atypical?
3
A.
Is not atypical.
4
Q.
Thank you for the clarification.
5
6
MR. HUDIS:
Is fairly commonly done.
Counsel, can we stipulate that
Exhibit 9 is a business record of Internet Archive?
7
MS. AHMAD:
Yes, we can.
8
MR. HUDIS:
Any objection, Counsel?
9
MS. LU:
10
11
No objection.
MR. HUDIS:
Q.
So looking again at Exhibit 7 and 9, the
12
search associated with gov.law.aera.standards.1999
13
is reflected in Exhibit 7 and includes the
14
make_dark command, correct?
15
MS. LU:
16
THE WITNESS:
Objection, vague and ambiguous.
The -- the records of the
17
task history lists a command of make_dark.php for
18
task ID 315793300.
19
listed for the final task or the task at the top of
20
the list on the item history page, Exhibit 7.
21
This is also the task ID that's
MR. HUDIS:
In the last answer the witness
22
gave, let the record reflect that he was referring
23
to Exhibits 9 and 7.
24
Off the record.
25
VIDEO OPERATOR:
The time is 12:33 p.m.
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 120
1
and we are off the record.
2
(Discussion off the record.)
3
(Plaintiffs' Exhibit 10 marked for
4
identification.)
5
VIDEO OPERATOR:
6
are on the record.
7
8
9
The time is 12:34 and we
MR. HUDIS:
Q.
Mr. Butler, I now put in front of you a
document marked as Exhibit 10.
It's a one-page
10
document.
11
Archive Error," and it's dated June 30, 2014.
12
13
And it says at the top, "Internet
I'd like you to compare the URL printed on
Exhibit 6 and the URL printed on Exhibit 10.
14
Are they the same?
15
A.
Yes, they are the same.
16
Q.
Now, you notice on Exhibit 6, content is
17
there?
18
MS. LU:
19
MR. HUDIS:
20
21
Q.
Objection, vague and ambiguous.
Is there content shown on Exhibit 6 at the
URL shown at the bottom?
22
MS. LU:
23
THE WITNESS:
Objection, vague and ambiguous.
Exhibit 6 shows the standard
24
design and layout for an archive.org details page
25
for a text item.
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 121
1
2
MR. HUDIS:
Q.
And the text item is gov.law.aera
3
.standards.1999?
4
MS. LU:
5
Objection, lack of personal
knowledge.
6
THE WITNESS:
That is the identifier
7
listed in the URL at the bottom of the printout for
8
Exhibit 6.
9
10
11
12
13
14
MR. HUDIS:
Q.
And it's also listed in the identifier
access on Page 2 of Exhibit 6?
A.
That identifier is also listed under the
identifier access listing on Exhibit 6.
Q.
Now, if you notice in Exhibit 10, the
15
content is gone.
16
MS. LU:
17
Objection, vague and ambiguous,
argumentative.
18
THE WITNESS:
On Exhibit 10, I see the
19
standard placeholder message that indicates an item
20
is not available.
21
22
MR. HUDIS:
Q.
So my question, if Exhibit 6 was printed
23
on March 14, 2014, and Exhibit 10 was printed on
24
June 30, 2014, and they both have the same URL,
25
what happened between March and June such that the
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1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
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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
Christopher Butler
December 2, 2014
San Francisco, CA
Page 123
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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
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 124
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
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
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
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
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
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
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
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
Christopher Butler
December 2, 2014
San Francisco, CA
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
Christopher Butler
December 2, 2014
San Francisco, CA
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
Christopher Butler
December 2, 2014
San Francisco, CA
Page 134
1
Q.
I now place in front of you what has been
2
marked as Exhibit 12 and ask if you recognize the
3
collection of documents.
4
5
For the record, Exhibit 12 bears
production numbers IA-AERA 1 through 4.
6
A.
Yes, I recognize these documents.
7
Q.
Was Exhibit 12 produced to us in response
8
to our document subpoena?
9
A.
Yes.
10
Q.
And copied on this e-mail is Brewster
11
Kahle, and you said he is the founder of Internet
12
Archive?
13
14
MS. LU:
knowledge and compound.
15
16
17
18
19
20
Objection, lack of personal
MR. HUDIS:
All right.
Let's take them
one at a time.
Q.
Is Mr. Kahle copied on the e-mail from
Mr. Malamud to you dated December 19th, 2013?
A.
Brewster Kahle's name is listed by the
cc field.
21
Q.
And who is Mr. Kahle?
22
A.
Mr. Kahle is the founder of Internet
23
24
25
Archive.
Q.
And do you know what the initials "SDO"
means?
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 135
1
A.
No.
2
Q.
Did you ever ask Mr. Malamud what "SDO"
3
means?
4
A.
No.
5
Q.
Are you familiar with the term "standards
6
organization"?
7
A.
Yes.
8
Q.
Is SDO an acronym for standards
9
organization?
10
11
MS. LU:
knowledge.
12
13
THE WITNESS:
16
MR. HUDIS:
Q.
Do you know why Mr. Malamud sent you this
e-mail of Exhibit 12?
17
18
It seems to me that it is.
I don't know for certain.
14
15
Objection, lack of personal
MS. LU:
Objection, lack of personal
knowledge.
19
THE WITNESS:
I know that Mr. Malamud sent
20
me this e-mail with the take-down requests he'd
21
received and his response to the -- to the
22
take-down request, and that it was pertinent to --
23
to something posted on archive.org.
24
25
MR. HUDIS:
Q.
Just so we're clear, the e-mail that
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 136
1
Mr. Malamud sent to you on December 19th, 2013, did
2
it relate to a take-down request of material on
3
Public Resource's website or on Internet Archive's
4
website?
5
6
MS. LU:
Objection, lack of personal
knowledge.
7
THE WITNESS:
As I read the e-mail that
8
was forwarded by Carl from aera.net, I see only a
9
listing relating to the website law.resource.org.
10
11
12
MR. HUDIS:
Q.
That's not a website maintained by
Internet Archive, is it?
13
A.
It's not.
14
Q.
Has Mr. Malamud sent you e-mails similar
15
to the one in Exhibit 12 before?
16
MS. LU:
17
THE WITNESS:
18
MR. HUDIS:
19
20
Q.
Objection as to relevance.
Can you define "similar."
Yes.
Complaints by other standards
organizations to take down posted material.
21
A.
Yes.
22
Q.
How many times?
23
A.
Approximately, five or six.
24
Q.
Since December 19th, 2013, has Mr. Malamud
25
sent you similar e-mails to the one in Exhibit 12?
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 137
1
2
MS. LU:
and relevance.
3
4
THE WITNESS:
7
Would you repeat the
question, please?
5
6
Objection, vague and ambiguous,
MR. HUDIS:
Q.
Yes.
Since December 2013, has Mr. Malamud sent
you e-mails similar to the one shown in Exhibit 12?
8
MS. LU:
9
THE WITNESS:
Same objection.
I don't recall if
10
Mr. Malamud has sent us an e-mail since that date
11
relating to take-down requests from standard
12
organizations.
13
14
MR. HUDIS:
Q.
Did you, Mr. Butler, discuss the posting
15
of the 1999 standards to Internet Archive's website
16
at any time after you received this letter of
17
Exhibit 12?
18
MS. LU:
19
THE WITNESS:
20
MR. HUDIS:
21
Could you repeat the question?
22
(Record read by Reporter.)
23
MR. HUDIS:
24
THE WITNESS:
25
Objection, vague and ambiguous.
The question again was -Yes.
With Mr. Malamud.
We only notified -- Internet
Archive only notified Mr. Malamud that we had
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 138
1
received the subpoena issued to us for this case.
2
3
4
MR. HUDIS:
Q.
that you received my client's subpoena?
5
6
So you had a conversation with Mr. Malamud
MS. LU:
Objection, assumes facts not in
evidence and misstates prior testimony.
7
THE WITNESS:
A phone conversation
8
occurred with Mr. Malamud to advise him that we had
9
received the subpoena.
10
11
12
13
MR. HUDIS:
Q.
What did he say to you during that phone
conversation?
A.
He -- he said that he -- he understood and
14
that he -- that he hoped it wouldn't be a big
15
burden for Internet Archive.
16
17
18
19
Q.
Have you told me the entirety of that
conversation between you and Mr. Malamud?
A.
I've told you the -- the entirety of the
substance of the communication.
20
Q.
Did you leave out any details?
21
A.
No.
22
Q.
Since receiving this e-mail of Exhibit 12
23
from Mr. Malamud, did you discuss with him
24
disabling public access of the 1999 standards from
25
Internet Archive's website?
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 139
1
A.
No.
2
Q.
Other than Exhibit 12, has Internet
3
Archive exchanged any other correspondence with
4
Mr. Malamud or Public Resource regarding the
5
posting of the 1999 standards to Internet Archive's
6
website or the disabling of public access to the
7
1999 standards on Internet Archive's website?
8
A.
I can say Internet Archive performed a
9
search and discussed with those members of Internet
10
Archive's staff we understood may have communicated
11
with Mr. Malamud upon receiving the -- the
12
subpoenas, and that we did not delete any
13
information after having received that subpoena,
14
and performed a search of the e-mail accounts and
15
the physical files.
16
And this e-mail received from Mr. Malamud
17
is the only record of communication that was found
18
from that search.
19
Q.
And that's the e-mail of Exhibit 12?
20
A.
That's right.
21
Q.
Does Internet Archive maintain any phone
22
23
24
25
logs of its conversations with the outside public?
A.
Our phone system -- our phone system may
have that.
Q.
I don't know.
Well, other than the fact that the call
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 140
1
was made, I'm talking about the substance of the
2
call.
3
Does Internet Archive maintain any call
4
logs of the substance of calls it has with outside
5
individuals or companies?
6
A.
7
No.
MR. HUDIS:
That's all I have for this
8
witness.
9
of the deposition subpoena.
I do keep the deposition open as a result
And unless we can come
10
to some understanding with Public Resource's
11
counsel, we may need to have a second deposition of
12
Internet Archive.
13
MS. LU:
And I'll object that we had
14
discussed the subpoena -- stipulation as to certain
15
matters before this deposition took place, and
16
counsel for plaintiffs withdrew that stipulation in
17
favor of this deposition today.
18
object to any re- -- any second deposition of
19
Internet Archive.
20
MR. HUDIS:
And we would
My recollection is that while
21
I did have conversations with Internet Archive's
22
counsel, I have had no such conversations with
23
Public Resource's counsel on the nature of this
24
deposition or what it might have contained by way
25
of stipulation.
Alderson Reporting Company
1-800-FOR-DEPO
Christopher Butler
December 2, 2014
San Francisco, CA
Page 141
1
2
3
4
5
6
THE REPORTER:
Do you want a copy of the
deposition?
MS. LU:
I think we'll probably discuss
that off the record afterwards.
Counsel, do you want to reserve 30 days to
make any corrections?
7
MS. AHMAD:
8
MS. LU:
9
Sure.
Yes.
So 30 days after the witness has
an opportunity to review the transcript.
10
VIDEO OPERATOR:
11
MR. HUDIS:
12
VIDEO OPERATOR:
Is that it?
Yes.
This marks the end of
13
volume 1, disk 2 and for the day, at least,
14
concludes the deposition of Chris Butler.
15
is 1:10 p.m. and we are off the record.
16
(Whereupon, the deposition
17
adjourned at 1:10 o'clock p.m.)
18
---o0o---
19
20
21
22
23
24
25
Alderson Reporting Company
1-800-FOR-DEPO
The time
Christopher Butler
December 2, 2014
San Francisco, CA
Page 142
1
CERTIFICATE OF DEPONENT
2
3
I hereby certify that I have read and examined the
4
foregoing transcript, and the same is a true and
5
accurate record of the testimony given by me.
6
Any additions or corrections that I feel are
7
necessary, I will attach on a separate sheet of
8
paper to the original transcript.
9
10
_________________________
11
Signature of Deponent
12
13
I hereby certify that the individual representing
14
himself/herself to be the above-named individual,
15
appeared before me this _____ day of ____________,
16
2014, and executed the above certificate in my
17
presence.
18
19
________________________
20
NOTARY PUBLIC IN AND FOR
21
22
________________________
23
County Name
24
25
MY COMMISSION EXPIRES:
Alderson Reporting Company
1-800-FOR-DEPO
1
STATE OF CALIFORNIA
2
COUNTY OF SAN FRANCISCO
I,
3
CINDY
TUGAI/ù/
a Certified
Shorthand
6
Reporter of the State of California, duly
authorized to administer oaths pursuant to Section
B2IL of the Cal-ifornla code of civil Procedure, do
1
hereby certify
4
5
CHRISTOPHER BUTLER'
B
9
10
11
-Lt
1a
TL
13
I4
15
that
the witness in the foregoing deposition, h/as by
duly s\^rorn to testífy the truth, the whole truth
and nothing but the truth in the within-entitled
me
cause; that said testì_mony of said witness \^/as
reported by ilêr a dj-sinterested person' and was
thereafter transcribed under my direction into
typewriting and is a true and correct transcript-ion
20
of said proceedlngs.
. I further certify that I am not of counsef
or attorney for either or any of the parties in t-he
foregolng deposition and caption named, nor ín any
ay int erested in the outcome of the cause named in
2I
said caption.
L6
I1
1B
I9
22
r^i
Dared rhe LzL:n
\y
"t.o"ämber,
201-4.
L:u4 1,"7/t-
24
CINDY TUGAW /
25
CSR NO. 4BO5