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).

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EXHIBIT A Case No. 1:14-cv-00857-TSC-DAR Carl Malamud May 12, 2015 San Francisco, CA Page 1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF COLUMBIA 3 _________________________________ 4 AMERICAN EDUCATIONAL RESEARCH ) 5 ASSOCIATION, INC., AMERICAN ) 6 PSYCHOLOGICAL ASSOCIATION, INC., ) 7 and NATIONAL COUNCIL ON ) 8 MEASUREMENT IN EDUCATION, INC., ) Civil Action No. 9 Plaintiffs, ) 1:14-cv-00857-TSC-DAR 10 v. ) 11 PUBLIC.RESOURCE.ORG, ) 12 13 Defendant. ) _________________________________) 14 15 16 VIDEOTAPED DEPOSITION OF CARL MALAMUD 17 18 19 DATE: May 12, 2015 20 TIME: 9:33 a.m. 21 LOCATION: Fenwick & West 22 555 California Street 23 12th Floor 24 San Francisco, California 25 REPORTED BY: 94104 Diane S. Martin, CSR 6464, CCRR Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 2 1 A P P E A R A N C E S: 2 3 For the Plaintiffs: 4 OBLON, McCLELLAND, MAIER & NEUSTADT, LLP 5 BY: 6 JONATHAN HUDIS, ESQ. KATHERINE D. CAPPAERT, ESQ. 7 1940 Duke Street 8 Alexandria, Virginia 9 703-413-3000 10 jhudis@oblon.com 11 22314 kcappaert@oblon.com 12 13 For the Defendant Public.Resource.Org: 14 FENWICK & WEST 15 BY: 16 555 California Street 17 112th Floor 18 San Francisco, California 19 415-875-2300 20 abridges@fenwick.com 21 BY: 22 801 California Street 23 Mountain View, California 24 650-988-8500 25 mbecker@fenwick.com ANDREW P. BRIDGES, ESQ. 94104 MATTHEW BECKER, ESQ. 94041 Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 3 1 A P P E A R A N C E S: (Continued) 2 3 For the Defendant Electronic Frontier Foundation: 4 ELECTRONIC FRONTIER FOUNDATION 5 BY: 6 CORYNNE McSHERRY, ESQ. MITCHELL L. STOLTZ, ESQ. 7 815 Eddy Street 8 San Francisco, California 9 415-436-9333 10 corynne@eff.org 11 94109 mitch@eff.org 12 13 14 The Videographer: Anthony Hensley 15 16 17 18 19 20 21 22 23 24 25 Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 4 1 EXAMINATION INDEX 2 EXAMINATION BY: 3 MR. HUDIS PAGE 10 4 5 6 7 EXHIBIT INDEX 8 PLAINTIFFS' 9 13 - Notice of Deposition of Carl Malamud 14 10 14 - Notice of Deposition of Defendant 14 11 PAGE Public.Resource.Org, Inc. 12 15 - Reference Citations 28 13 16 - Articles of Incorporation of 94 14 Public.Resource.Org 15 17 - Bylaws of Public.Resource.Org, Inc. 94 16 18 - Letter to Public.Resource.Org, Inc. from 94 17 18 IRS dated September 25, 2007 19 - 19 20 110 AERA_APA_NCME_0031411 20 - 21 22 Public.Resource.Org home page, Bates Public.Resource.Org Agency Directory, 110 Bates AERA_APA_NCME_0031412 to 31413 21 - Defendant-Counterclaimant 23 Public.Resource.Org, Inc.'s Initial 24 Disclosures Pursuant to 25 Fed.R.Civ.P.26(a)(1) Alderson Reporting Company 1-800-FOR-DEPO 125 Carl Malamud May 12, 2015 San Francisco, CA Page 5 1 EXHIBIT INDEX (Continued) 2 PLAINTIFFS' 3 22 - PAGE Exploring the Internet, a Technical 4 Travelogue, Bates AERA_APA_NCME_0032079 5 155 to 32228 6 23 - E-mail from Carl Malamud to Jonathan 7 Siegel dated October 1, 2011, Bates 8 166 AERA_APA_NCME_0031488 to 31489 9 24 - 10 11 25 - 26 - 27 - Kickstarter Campaign, Bates 185 Kickstarter Campaign, Bates 207 AERA_APA_NCME_0031480 to 31485 28 - 18 19 181 AERA_APA_NCME_0031480 to 31485 16 17 Boing Boing Official Guest Memorandum of Law, Bates AERA_APA_NCME_0031764 to 31769 14 15 173 AERA_APA_NCME_0032075 to 0032078 12 13 On The Media transcript, Bates An Edicts of Government Amendment, Bates 213 AERA_APA_NCME_0031208 to 0031250 29 - Defendant-Counterclaimant 20 Public.Resource.Org, Inc.'s Amended 21 Responses to 22 Plaintiffs-Counterdefendants' First Set 23 236 of Interrogatores Nos. 1-8 24 25 30 - Receipt from Amazon.com, Bates PROAERA_00000446 to 447 Alderson Reporting Company 1-800-FOR-DEPO 237 Carl Malamud May 12, 2015 San Francisco, CA Page 6 1 EXHIBIT INDEX (Continued) 2 PLAINTIFFS' 3 31 - PAGE Standards for Educational and 4 Psychological Testing, Bates 5 239 AERA_APA_NCME_0000001 to 201 6 32 - Letter to Gary M. Stern from Carl 7 Malamud dated July 14, 2009, Bates 8 240 PROAERA_00010153 to 10195 9 33 - Letter to Carl Malamud from National 10 Archives and Records Administration 11 dated August 3, 2009, Bates 12 251 PROAERA_00010247 to 249 13 34 - AERA: Standard for Educational and 14 Psychological Testing, Bates 15 261 AERA_APA_NCME_0031528 to 31738 16 35A - Yo! Your Honor transcription dated April 17 7, 2015, Bates AERA_APA_NCME_0032046 to 18 287 32074 19 35B - Yo! Your Honor transcription dated April 20 7, 2015, Bates AERA_APA_NCME_0032046 to 21 287 32074 CD 22 23 36 - Directory of Tables and ReadMe File, Bates PROAERA_00000830 to 837 24 25 Alderson Reporting Company 1-800-FOR-DEPO 293 Carl Malamud May 12, 2015 San Francisco, CA Page 7 1 EXHIBIT INDEX (Continued) 2 PLAINTIFFS' 3 37 - AERA: PAGE Standard for Educational and 4 Psychological Testing, Bates 5 301 PROAERA_00000822 to 823 6 38 - 7 8 304 dated 6/11/2014, Bates PROAERA_00000824 39 - 9 E-mail from John Neikirk to Carl Malamud 310 dated 12/16/2013, Bates 10 11 E-mail from Carl Malamud to Alexis Rossi AERA_APA_NCME_0005129 40 - Letter to John Neikirk from Carl Malamud 12 dated December 19, 2013, Bates 13 313 AERA_APA_NCME_0005127 to 5128 14 41 - E-mail from Carl Malamud to Christopher 15 Butler dated 12/19/2013, Bates 16 319 PROAERA_00000810 17 42 - E-mail from Jonathan Hudis to Carl 18 Malamud dated 6/10/2014, Bates 19 322 PROAERA_00000820 to 821 20 43 - Memorandum dated 6/12/2014 324 21 44 - Spreadsheet, Bates PROAERA_00000827 336 22 45 - Defendant-Counterclaimant 351 23 Public.Resource.Org, Inc.'s Responses to 24 Plaintiffs' Second Set of 25 Interrogatories Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 8 1 EXHIBIT INDEX (Continued) 2 PLAINTIFFS' 3 46 - PAGE Public.Resource.Org, Inc.'s Counterclaim 4 for Declaratory Relief; Answer to 5 358 Complaint 6 47 - E-mail from Carl Malamud to All Members 7 of the Public.Resource Legal Staff dated 8 December 28, 2012, Bates 9 366 AERA_APA_NCME_0031807 to 809 10 11 12 INDEX OF MARKED QUESTIONS 13 PAGE 14 18 15 LINE 5 Q. Without revealing the substance of 16 attorney-client communications, who did you speak 17 with to prepare to testify today? 18 19 20 21 22 23 24 25 Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 9 1 P R O C E E D I N G S 2 3 --oOo-THE VIDEOGRAPHER: Good morning. We're on 4 the video record, ladies and gentlemen, at 5 9:33 a.m. 6 Reporting in Washington D.C. 7 202-289-2260. 8 9 I am Anthony Hensley from Alderson Court The phone number is This is matter pending before the court of the United States District Court for the District 10 of Columbia in the case captioned American 11 Educational Research Association et al., versus 12 Public.Resource.Org, Incorporated, case number 13 1-14-cv-00857-TSC-DAR. 14 This is the beginning of Disc 1, Volume 1 15 of the deposition of Carl Malamud on 5/11/2015. 16 We're located at address 555 California 17 Street, San Francisco, California. 18 on behalf of the plaintiffs. This is taken 19 Counsel, would you please identify 20 yourselves starting with the questioning attorney. 21 MR. HUDIS: Jonathan Hudis, and Katherine 22 Cappaert for the plaintiffs. 23 MR. BRIDGES: 24 25 Andrew Bridges and Matt Becker of Fenwick & West for the defendant. MR. SMITH: Corynne McSherry from the Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 10 1 Electronic Frontier Foundation for the defendant. 2 THE VIDEOGRAPHER: 3 MR. HUDIS: 4 record. 5 You may proceed. Just a correction for the BY MR. HUDIS: 6 7 Q. Today is May 12th, 2015. Sir, could I have your full name and address for the record? 8 Oh, go ahead. 9 THe REPORTER: 10 11 Thank you. Sir, could I have you raise your right hand, please. 12 CARL MALAMUD, 13 called as a witness, after having been duly sworn 14 by the Certified Shorthand Reporter to tell the 15 truth, the whole truth, and nothing but the truth, 16 testified as follows: 17 18 19 20 21 EXAMINATION BY MR. HUDIS: Q. Sir, if I could have your full name and address for the record. A. Carl Andrew Malamud, and my address is 22 1005, Gravenstein Highway North in Sebastapol, 23 California. Zip code is 95472. 24 Q. And is that your home address? 25 A. No, that's my work address. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 11 1 Q. All right. 2 A. It's P.O. Box 361 in Bodega, California, 3 94992. 4 Q. And your home address, sir? Mr. Malamud, we're here to take your 5 deposition in the matter of American Educational 6 Research Association and its co-plaintiffs versus 7 Public.Resource.Org. 8 9 10 The parties all have long names. So I want to establish some working acronyms between the two of us. 11 So if I say AERA, do you understand that to 12 mean the American Educational Research Association, 13 Inc.? 14 A. Yes, I do. 15 Q. And if I use the acronym APA, that will 16 refer to the American Psychological Association, 17 Inc. 18 A. Yes. 19 Q. And if I use the acronym NCME, that will 20 refer to National Council on Measurement and 21 Education, Inc. 22 A. Yes. 23 Q. And if I refer to Public.Resource, that 24 will be a shorthand version of Public.Resource.Org, 25 Inc.? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 12 1 A. That's correct. 2 Q. And a couple of housekeeping matters, 3 Mr. Malamud. 4 5 You understand that today you're giving testimony under oath? 6 A. I do. 7 Q. And that the court reporter is taking down 8 everything you are saying? 9 A. I do. 10 Q. And we will need audible responses from 11 you. So no nods or gestures. 12 A. Yes. 13 Q. If at any point, Mr. Malamud, you don't 14 understand a question, please let me know and I 15 will try to clarify that question for you. 16 A. I will. 17 Q. If you need a break for any reason, please 18 let me know and we can provide that break for you. 19 Except if there is a question pending, you must 20 answer the question before we take the break. 21 that okay? 22 A. Yes, I understand. 23 Q. All right. Is If at any point you come to 24 realize that an answer that you've already given is 25 not completely correct, please let me know and I Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 13 1 will give you an opportunity to correct that 2 answer. Do you understand? 3 A. I do. 4 Q. All right. 5 MR. BRIDGES: I would like to take the time 6 to say that under the rules, we do request the 7 opportunity to review and correct the deposition 8 afterwards. 9 10 11 MR. HUDIS: Thank you, Counsel. BY MR. HUDIS: Q. Is there any reason, Mr. Malamud, either by 12 your taking medication or by reason of illness, 13 that you cannot testify completely, accurately and 14 truthfully today? 15 A. There is no reason. 16 Q. Have you been deposed before? 17 A. Yes, I have. 18 Q. In what case or what cases? 19 A. That was in the case of -- 20 21 MR. BRIDGES: Sorry. I need for you to give me time to -- 22 THE WITNESS: Yes, sir. 23 MR. BRIDGES: That was not objectionable, 24 25 but give me time. THE WITNESS: That was the case ASTM et Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 14 1 al., versus Public.Resource.Org. 2 BY MR. HUDIS: 3 Q. Have you been deposed in any other cases? 4 A. No, I have not. 5 Q. One other housekeeping matter that your 6 counsel just reminded me. 7 So for the benefit of the court reporter, 8 wait until I finish my question before you start 9 answering so that for one thing, the court reporter 10 has a clean transcript. 11 counsel has time to object if he wants to. 12 13 Do you understand that? A. 14 15 16 17 18 19 20 And the other, your Yes, I understand. (PLAINTIFFS' EXHIBITS 13-14 WERE MARKED.) BY MR. HUDIS: Q. Mr. Malamud, I put in front of you what has now been marked as Plaintiff's Exhibit Malamud 13. Have you seen this deposition notice before, Exhibit 13 that is directed to you? MR. BRIDGES: I'm sorry, so which -- it 21 appears as though two -- I received two. 22 want -- 13 is -- okay. 23 THE WITNESS: It says 14. 24 MR. BRIDGES: Yes. I just 25 is -- this is 13. The one he's looking at It came to me. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 15 1 BY MR. SPEAR: 2 Q. All right. 3 A. The document entitled notice of deposition 4 Are we good? of Carl Malamud. 5 Q. Right. 6 A. Yes, it is. 7 Q. Have you seen this deposition notice of 8 And that's Exhibit 13? Exhibit 13 before? 9 A. Yes, I have. 10 Q. When for the first time? 11 A. When it was served, I believe. 12 Q. So if we gave it to your counsel on April 13 9, that's the first time around which you probably 14 saw Exhibit 13? 15 MR. BRIDGES: 16 Calls for speculation. 17 Objection. BY MR. HUDIS: 18 Q. You may answer. 19 A. I saw it in April. 20 Q. What did you do to prepare to testify 21 regarding the deposition notice of Exhibit 13? 22 MR. BRIDGES: Objection. Argumentative; 23 lacks foundation; assumes facts not in evidence. 24 BY MR. HUDIS: 25 Q. You may answer. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 16 1 A. I reviewed the deposition notice. I 2 reviewed the materials that were disclosed to the 3 plaintiffs during the discovery process. 4 5 6 7 8 9 Q. Do you remember which documents you reviewed? A. It was the materials that were disclosed to the plaintiffs. Q. Do you remember any specific documents that you reviewed? 10 A. 11 documents. 12 Q. Yes, please. 13 A. There was a California Code of Regulations. There were a large number of such Would you like a couple examples? 14 There were some -- there was a FOIA request. 15 was an electronic mail. 16 17 18 Q. There There were some letters. Anything else that you can remember at this time? A. I think that was the main material. There 19 were some appendices to some of the -- the letters 20 and electronic mail. 21 Q. All right. Do you remember in total how 22 many documents you might have reviewed to prepare 23 to testify? 24 25 MR. BRIDGES: Objection. Calls for speculation. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 17 1 THE WITNESS: 2 exactly, no. 3 I don't know how many BY MR. HUDIS: 4 Q. In preparation for testifying today, 5 pursuant to the personal deposition notice of 6 Exhibit 13, did you talk with anybody? 7 MR. BRIDGES: Objection. To the extent it 8 calls for the witness to reveal attorney-client 9 communications, I'll object on that basis and 10 instruct the witness not to answer. 11 BY MR. HUDIS: 12 Q. All right. Without revealing the substance 13 of attorney-client communications, who did you 14 speak with to prepare to testify today? 15 MR. BRIDGES: If -- if he had a 16 conversation with attorneys, that answer would call 17 for divulging of attorney-client communications 18 itself. 19 not to answer. 20 And I'd object and instruct the witness If you want to ask him about any 21 conversations he had with persons other than 22 attorneys, please do so. 23 MR. HUDIS: All right. So you're 24 instructing the witness not to answer whether he 25 spoke with attorneys regarding this preparation? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 18 1 MR. BRIDGES: If you're asking about 2 talking with attorneys regarding preparation, yes, 3 that's correct. 4 5 6 7 MR. HUDIS: Mark that question for ruling. BY MR. HUDIS: Q. Besides counsel, who, if anyone, did you speak with to prepare to testify today? 8 A. I didn't speak to anybody. 9 Q. Did you speak with anyone at Internet 10 Archive to prepare to testify today? 11 A. No, I did not. 12 Q. How long did you take to prepare for your 13 deposition testimony today? 14 15 MR. BRIDGES: Objection. Argumentative; lacks foundation. 16 THE WITNESS: I spent several hours a day, 17 all of last week. 18 weekend and on Monday preparing. 19 BY MR. HUDIS: 20 21 22 23 Q. And I spent some time over the And how long in total do you think you spent preparing to testify? MR. BRIDGES: Actually, same objections and also vague and ambiguous. 24 Are you referring to his personal 25 deposition as opposed to his 30(b)(6) deposition? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 19 1 MR. HUDIS: 2 MR. BRIDGES: Yes. Then it's -- lacks 3 foundation; argumentative; vague and ambiguous. 4 BY MR. HUDIS: 5 Q. You may answer. 6 A. My preparation was for my deposition in 7 both of my capacities. 8 out which times were one or the other. 9 Q. That's fine. So I was unable to separate Then how long in total did 10 you prepare to testify in all your capacities 11 today? 12 MR. BRIDGES: 13 Vague and ambiguous. 14 Objection. BY MR. HUDIS: 15 Q. You may answer. 16 A. Well, it was a few hours a day last week. 17 It was tens of hours. 18 number. 19 MR. BRIDGES: 20 Please give me time to object. 21 I don't have an exact BY MR. HUDIS: 22 Q. Mr. Malamud, I'd like to now place in front 23 of you what has been marked as Exhibit 14. 24 that is the deposition notice directed to 25 Public.Resource. Alderson Reporting Company 1-800-FOR-DEPO And Carl Malamud May 12, 2015 San Francisco, CA Page 20 1 Do you see that? 2 A. I do. 3 Q. Which topics of the deposition notice in 4 Exhibit 14 are you prepared to testify to today? 5 MR. BRIDGES: I'm going to note for the 6 record that there are objections which we as 7 lawyers have interposed, and I will state for the 8 record that we are not -- the defendant is not 9 producing Mr. Malamud with respect to categories 4, 10 10, 11, 19, 23, 29 and 30. 11 any questions on those topics. 12 And we will object to Of course, questions to Mr. Malamud on 13 those topics may proceed to the extent that they 14 are otherwise unobjectionable. 15 be pursuant to Rule 30(b)(6). 16 MR. HUDIS: But they would not So, Counsel, other than the 17 ones that you specifically named, is Mr. Malamud 18 prepared to testify on all the other deposition 19 topics in the deposition notice of Exhibit 14? 20 21 22 MR. BRIDGES: Yes. BY MR. HUDIS: Q. Now, with respect to the deposition notice 23 of Exhibit 14, what did you do to prepare to 24 testify regarding these topics? 25 MR. BRIDGES: Objection. Vague and Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 21 1 ambiguous. 2 BY MR. HUDIS: 3 Q. You may answer. 4 A. The same thing that I recently described to 5 6 7 you about my personal preparation. Q. And you reviewed the same documents and the same number of documents? 8 9 10 MR. BRIDGES: Lacks foundation; vague and ambiguous. BY MR. HUDIS: 11 Q. You may answer. 12 A. Yes. 13 14 My preparation was in toto. It wasn't separate by the type of deposition. Q. And to prepare to testify for your 15 deposition of Exhibit 14, did you speak with 16 counsel? 17 MR. BRIDGES: 18 question exactly as phrased. 19 THE WITNESS: 20 21 I will not object to that I spoke with counsel. BY MR. HUDIS: Q. Did you speak with anyone else besides 22 counsel in order to prepare to testify on the 23 deposition topics of Exhibit 14? 24 A. No, I did not. 25 Q. Did you speak with anyone at Internet Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 22 1 Archive to prepare to testify today? 2 A. No, I did not. 3 Q. And you spent the same number of hours in 4 total to prepare to testify regarding Exhibits 13 5 and 14, as you described before? 6 MR. BRIDGES: 7 Vague and ambiguous. 8 Objection. BY MR. HUDIS: 9 Q. You may answer. 10 MR. BRIDGES: Lacks foundation. 11 THE WITNESS: My preparation was for the 12 deposition. 13 the two roles that I play. 14 BY MR. HUDIS: 15 Q. I did not separate my time out between To prepare to testify today with respect to 16 both deposition notices of Exhibit 13 and 14, did 17 you speak with Ms. Rebecca Malamud? 18 A. No, I did not. 19 Q. Mr. Malamud, what's the highest level of 20 your education? 21 A. Highest degree? 22 Q. Yes. 23 A. I have an MBA. 24 Q. Do you have a bachelor's degree? 25 A. Yes, I do. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 23 1 Q. All right. 2 A. Indiana University. 3 Q. And what was the degree in? 4 A. Business economics and public policy. 5 Q. And when did you receive that degree? 6 A. Which degree? 7 Q. The B.S. in business economics and public 8 And from where? policy. 9 A. 1980. 10 Q. Towards your bachelor's degree, did you 11 have any major concentration? 12 A. Business economics and public policy. 13 Q. Did you have a minor concentration? 14 A. No, that was the program. 15 Q. And you said you have an MBA? 16 A. I do. 17 Q. And from which institution did you receive 18 19 your MBA? A. 20 21 MR. BRIDGES: 24 25 Again, I'll ask you to give me time to object. 22 23 Indiana University. THE WITNESS: Yes. BY MR. HUDIS: Q. And what type of -- what type of MBA degree was that? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 24 1 MR. BRIDGES: 2 Vague and ambiguous. 3 Objection. BY MR. HUDIS: 4 Q. You may answer. 5 A. It was an MBA granted as part of the 6 doctoral program in business economics and public 7 policy. 8 9 Q. And I believe you said you received your MBA from Indiana University? 10 A. That's correct. 11 Q. And what year did you receive your MBA? 12 A. I think it was 1982. 13 early '83. 14 Q. 15 16 17 It might have been Did you have any concentration towards your MBA, major concentration? A. My doctoral course work was in anti-trust and regulation economics. 18 Q. Did you have a minor concentration? 19 A. No, I did not. 20 Q. Mr. Malamud, do you have any formal legal 21 training? 22 MR. BRIDGES: 23 Vague and ambiguous. 24 Objection. BY MR. HUDIS: 25 Q. You may answer. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 25 1 2 A. I did a year at the Georgetown Law Center, the first year of law school. 3 Q. And what year was that? 4 A. 1984. 5 Q. And I take it you didn't go on to finish 6 the degree? 7 A. No, I did not. 8 Q. Now, you said you did a doctorate. 9 Do you have a Ph.D.? 10 A. No, I do not. 11 Q. Do you -- 12 MR. BRIDGES: Again, I need time to object. 13 THE WITNESS: Yes, sir. 14 MR. BRIDGES: I'll object to that as 15 misstating testimony. 16 17 Go ahead. BY MR. HUDIS: 18 Q. Do you have any other degrees? 19 A. No, I do not. 20 Q. Do you possess any certificates of any kind 21 22 23 24 25 for training? MR. BRIDGES: Objection. Vague and ambiguous. THE WITNESS: No. BY MR. HUDIS: Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 26 1 2 Q. Mr. Malamud, I'd like you to define a term for me, "computer science." 3 MR. BRIDGES: 4 vague and ambiguous. 5 BY MR. HUDIS: Objection. Argumentative; 6 Q. You may answer. 7 A. It's an academic discipline having to do 8 9 with the study of computers. Q. 10 And how about "computer networks"? MR. BRIDGES: Objection. Vague and 11 ambiguous; argumentative; lacks foundation; assumes 12 facts not in evidence. 13 THE WITNESS: Computer networks are -- is 14 the discipline and study of how one computer 15 communicates with another computer. 16 BY MR. HUDIS: 17 Q. 18 19 20 Have you written any books on computer science or computer networks? A. 21 22 25 Yes. MR. BRIDGES: Objection. Vague and ambiguous. 23 24 Thank you. THE WITNESS: Yes. BY MR. HUDIS: Q. As your counsel said, give him time to Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 27 1 object. 2 A. I will try. 3 Q. Thank you. 4 Sorry. So do you consider yourself to have any 5 expertise in computer science or computer networks 6 or both? 7 8 MR. BRIDGES: MR. HUDIS: 10 14 Good point, Counsel. MR. BRIDGES: Could call for a legal conclusion. 12 13 Vague and ambiguous; compound; argumentative. 9 11 Objection. MR. HUDIS: Good point, Counsel. BY MR. HUDIS: Q. Do you consider yourself to have expertise 15 in computer science? 16 MR. BRIDGES: Objection. Vague and 17 ambiguous; argumentative; may call for a legal 18 conclusion. 19 THE WITNESS: I have worked in the 20 profession since 1980. 21 to decide whether I have expertise or not. 22 BY MR. HUDIS: 23 24 25 Q. I think it's up to others And if you could briefly summarize your work in the profession over that 30 years. MR. BRIDGES: Objection. Calls for a Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 28 1 narrative; vague and ambiguous. 2 BY MR. HUDIS: 3 Q. You may answer. 4 A. I'm not sure what you're asking for. 5 6 you want to know what jobs I worked or -Q. 7 8 Do We'll take that later. Do you consider yourself to have an expertise in computer networks? 9 MR. BRIDGES: Objection. Vague and 10 ambiguous; argumentative; may call for a legal 11 conclusion. 12 THE WITNESS: Again, I've worked in the 13 profession since 1980, and I believe it's up to 14 others to decide whether I have expertise or not. 15 16 17 (PLAINTIFFS' EXHIBIT 15 WAS MARKED.) BY MR. HUDIS: Q. Mr. Malamud, I show you a document that has 18 now been marked as Exhibit 15. 19 look at the exhibit and tell me if that appears to 20 be a representative list of books you have authored 21 or co-authored? 22 MR. BRIDGES: 23 vague and ambiguous. 24 THE WITNESS: And I'd like you to 25 Objection. Lacks foundation; It is some books by me, but there's a number of other items in this list. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 29 1 2 3 BY MR. HUDIS: Q. And the other items in the list, are they items that you co-authored with others? 4 MR. BRIDGES: 5 vague and ambiguous. 6 THE WITNESS: Objection. Lacks foundation; This is a rather strange 7 list. 8 I have no idea what that is. 9 conference proceedings. 10 11 Item number 1, Gage, Bailey, Kahn, Malamud, MR. BRIDGES: It may have been some I'll -- I'll ask the witness not to speculate. 12 And I would object to the question at this 13 point on the grounds that may call for speculation 14 and lacks foundation. 15 THE WITNESS: There are a number of items 16 in here including pamphlets, and it looks like at 17 least one video presentation. 18 BY MR. HUDIS: 19 20 Q. Do you recognize the titles on Exhibit 15 as either authored by you or co-authored by you? 21 MR. BRIDGES: Objection. Lacks foundation; 22 vague and ambiguous; potentially argumentative; 23 compound. 24 25 Do you want him to identify particular titles? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 30 1 2 3 MR. HUDIS: BY MR. HUDIS: Q. 4 5 I'll -- Well, first answer that question. MR. BRIDGES: All those same objections THE WITNESS: At first glance, these do apply. 6 7 appear to be items that I was involved with, either 8 as an author, a co-author or a producer. 9 BY MR. HUDIS: 10 Q. Are there any items on Exhibit 15 which you 11 do not recognize your involvement as either an 12 author, co-author or producer? 13 MR. BRIDGES: 14 vague and ambiguous. 15 THE WITNESS: Objection. Lacks foundation; I'm not sure what item number 16 1 is on that list, the number one, Gage, Bailey, 17 Kahn. 18 19 MR. BRIDGES: was -- I'm sorry. 20 21 The question Not objection. The question is, are there any items which you do not recognize? 22 23 Objection. THE WITNESS: That's the question. Yes. BY MR. HUDIS: 24 Q. Which one? 25 A. Item number 1. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 31 1 Q. Any others? 2 A. No. 3 Q. Of the ones you recognize on Exhibit 15, 4 what generally are the subject matters of these 5 writings? 6 MR. BRIDGES: Objection. Massively lacks 7 foundation; massively compound; vague and 8 ambiguous, and misleading and assumes facts not in 9 evidence. 10 THE WITNESS: There's a large number of 11 topics. 12 items and tell you what they're about. 13 BY MR. HUDIS: 14 Q. 15 16 Sure. Sure. So the second item, "12 Tables of American Law." 17 18 I'd be happy to discuss the individual What -- what is that about? MR. BRIDGES: Objection. Vague and ambiguous. 19 THE WITNESS: That is a lecture I gave at 20 the Harvard Law School to a series -- to a 21 collection of law librarians that had convened. 22 BY MR. HUDIS: 23 24 25 Q. And what was the topic? MR. BRIDGES: Objection. Vague and ambiguous. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 32 1 THE WITNESS: The topic was a history of 2 the 12 tables of Roman law, and the application of 3 the concept of promulgation of the law to current 4 system of American justice. 5 BY MR. HUDIS: 6 Q. The next item, "Law.gov, a revolution in 7 legal affairs." 8 matter of that item? 9 MR. BRIDGES: 10 Could you tell me the subject Objection. Vague and ambiguous. 11 THE WITNESS: That was a kickoff panel 12 session for the Law.gov effort, which was a attempt 13 to study the question of the availability of 14 primary legal materials in the United States. 15 BY MR. HUDIS: 16 Q. Availability where? 17 A. Generally. 18 Q. On the Internet? 19 20 MR. BRIDGES: Elsewhere? Objection. Asked and Generally. The availability answered. 21 THE WITNESS: 22 of legal materials in the United States. 23 BY MR. HUDIS: 24 25 Q. And the next item, "Cyberjockeying in the 21st Century," what was that item about? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 33 1 2 MR. BRIDGES: Objection. Vague and ambiguous. 3 THE WITNESS: That was a satellite-based 4 video production that was produced by Mr. John Gage 5 of Sun Microsystems, and I was a guest where I 6 demonstrated the first radio station on the 7 Internet and how it worked. 8 9 MR. BRIDGES: I'll just instruct the witness to answer the question. 10 That question was, what was that item 11 about? 12 BY MR. HUDIS: 13 Q. The next item, "The currents of our time." 14 What -- what was that publication about? 15 MR. BRIDGES: 16 Vague and ambiguous. 17 Objection. BY MR. HUDIS: 18 Q. You may answer. 19 A. It was about the procurement of information 20 21 22 technology by the federal government. Q. What did you -- what did you mean in your last answer by "information technology"? 23 A. Computers, computer networks and software. 24 Q. The next item, "The future of the Internet 25 protocol." What was that item about? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 34 1 2 MR. BRIDGES: Objection. Vague and ambiguous. 3 THE WITNESS: That was a series of 4 interviews that I conducted with Internet engineers 5 about the future of the Internet protocol. 6 BY MR. HUDIS: 7 Q. 8 protocol"? 9 10 And what did you mean by "Internet MR. BRIDGES: Objection. Vague and ambiguous. 11 THE WITNESS: The Internet protocol is a 12 specific networking protocol known as IP, which is 13 one of the foundations of the Internet. 14 BY MR. HUDIS: 15 16 Q. What was that item about? 17 18 The next item, "Ten rules for radicals." MR. BRIDGES: Objection. Vague and ambiguous. 19 THE WITNESS: That was a speech before the 20 World Wide Web conference. 21 BY MR. HUDIS: 22 23 24 25 Q. And what was your speech about? MR. BRIDGES: Objection. Asked and answered; vague and ambiguous. THE WITNESS: It was a keynote speech about Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 35 1 my experiences in the past and some lessons that I 2 had for the attendees. 3 BY MR. HUDIS: 4 5 Q. imparted to the attendees? 6 7 MR. BRIDGES: Objection. Vague and ambiguous. 8 9 Could you summarize the lessons you THE WITNESS: I can summarize one. I explained the story of how I put the Securities and 10 Exchange Commission EDGAR database online and the 11 efforts that we undertook in order to get the 12 government to -- to -- to run that service 13 themselves. 14 BY MR. HUDIS: 15 16 Q. for the Securities and Exchange Commission? 17 18 And the EDGAR database, that's the database MR. BRIDGES: Objection. Vague and ambiguous. 19 THE WITNESS: EDGAR is the Electronic Data 20 Gathering, and I forget what AR is, and it is, in 21 fact, the information dissemination database of the 22 Securities and Exchange Commission. 23 BY MR. HUDIS: 24 25 Q. And the next item, "Concert in the park, Internet 1996 World Exposition," what -- what was Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 36 1 that item about? 2 3 MR. BRIDGES: Objection. Vague and ambiguous. 4 THE WITNESS: I was simply a producer on 5 that item. 6 by Martin Lucas and Corrine Becknell, and it was 7 released as an audio CD. 8 BY MR. HUDIS: 9 10 Q. The next item, "Three revolutions in American law," what was that item about? 11 12 It was a series of audio compositions MR. BRIDGES: Objection. Vague and ambiguous. 13 THE WITNESS: It was a paper about the 14 history of promulgation of the law in the United 15 States beginning with the Wheaton v Peters 16 decision. 17 BY MR. HUDIS: 18 Q. And what specific area of the law? 19 MR. BRIDGES: 20 vague and ambiguous. 21 THE WITNESS: 22 the law. 23 Objection. Lacks foundation; About promulgation of -- of BY MR. HUDIS: Of the laws. 24 Q. And what did you mean by "promulgation"? 25 A. Promulgation is the process of publication Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 37 1 2 3 and dissemination of primary legal materials. Q. The next item, "Security and networks." What was that item about? 4 5 MR. BRIDGES: Objection. Vague and ambiguous. 6 THE WITNESS: That was two different audio 7 interviews I did as part of the radio station on 8 the Internet that I ran, one with Jeffrey Schiller 9 and one with John Romkey, about security and 10 networks. 11 MR. BRIDGES: And I'll ask the witness 12 simply to answer the question that is asked. 13 BY MR. HUDIS: 14 15 Q. people." 16 17 Mr. Malamud, the next item, "By the What was that item about? MR. BRIDGES: Objection. Vague and ambiguous. 18 THE WITNESS: It was a speech that I gave 19 to the Gov 2.0 conference, I believe was the 20 official name of that. 21 BY MR. HUDIS: 22 23 24 25 Q. What was the topic of that speech? MR. BRIDGES: Objection. Vague and ambiguous. THE WITNESS: It discussed the history of, Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 38 1 among other things, the government printing office. 2 BY MR. HUDIS: 3 4 Q. about besides the government printing office? 5 6 Do you remember what else that speech was MR. BRIDGES: Objection. Vague and ambiguous. 7 THE WITNESS: It was about the creation of 8 the official journals of government. 9 BY MR. HUDIS: 10 Q. What did you mean by "official journals"? 11 A. The official journals of government in the 12 United States include the Congressional Record, the 13 Federal Register, the Code of Federal Regulation 14 and the papers of the president. 15 16 Q. What was that item about? 17 18 The next item, "Mobile IP networking." MR. BRIDGES: Objection. Vague and ambiguous. 19 THE WITNESS: As with the security networks 20 thing we discussed previously, it was an interview 21 that I conducted as part of Internet talk radio 22 with Internet engineers. 23 BY MR. HUDIS: 24 25 Q. The next item, "Global network operations," what was that item about? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 39 1 2 MR. BRIDGES: Objection. Vague and ambiguous. 3 THE WITNESS: Same as the previous. It was 4 a discussion with Internet engineers about the work 5 that they do. 6 BY MR. HUDIS: 7 Q. The next item, "Law.gov, the raw materials 8 of our democracy, a shining city upon the hill, an 9 appeal to the court." 10 11 MR. BRIDGES: What was that item about? Objection. Vague and ambiguous. 12 THE WITNESS: That was a pamphlet that 13 contained prepared remarks that I delivered upon 14 three occasions. 15 BY MR. HUDIS: 16 17 Q. pamphlet? 18 19 And what is the subject matter of that MR. BRIDGES: Objection. Vague and ambiguous. 20 THE WITNESS: There were -- the subject 21 matter was the Law.gov effort and the question of 22 promulgation of primary legal materials in the 23 United States. 24 BY MR. HUDIS: 25 Q. As you described before? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 40 1 MR. BRIDGES: 2 Vague and ambiguous. 3 Objection. BY MR. HUDIS: 4 5 6 Q. What do you mean by "primary legal materials"? A. Primary legal materials are edicts of 7 government. 8 force of law that are -- are -- originated from a 9 governmental body. Those are materials that have the 10 Q. Could you give me some examples, please? 11 A. A supreme court opinion. 12 Q. So legal opinions? 13 14 MR. BRIDGES: Objection. Vague and ambiguous; misstates testimony. 15 THE WITNESS: A supreme court opinion is 16 one example. 17 also are edicts of government, yes. 18 BY MR. HUDIS: 19 Q. There are other court opinions that Would a statute passed by a legislature be 20 another edict of government? 21 MR. BRIDGES: 22 ambiguous; lacks foundation. 23 THE WITNESS: 24 Vague and Yes, statutes are edicts of government. 25 Objection. BY MR. HUDIS: Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 41 1 2 Q. Would an agency regulation be another edict of government? 3 MR. BRIDGES: 4 ambiguous; lacks foundation. 5 THE WITNESS: Objection. Vague and Any materials that have the 6 force of law, and that includes a regulation. 7 BY MR. HUDIS: 8 9 10 Q. The next item, "DEC Networks and architectures." A. What was that item about? That was a professional reference book 11 about the computer networking protocols that were 12 adopted by the Digital Equipment Corporation. 13 14 15 Q. What did you mean by "computer networking protocols"? A. It's a suite of specifications that were 16 known as DECnets, which is how Digital Equipment 17 Corporation computers were able to communicate with 18 each other. 19 20 Q. When you say the "suite of specifications," do you mean software? 21 A. No, I mean protocol specifications. 22 Q. What do you mean by "protocol 23 24 25 specifications"? A. A detailed and formal description of the way that one computer communicates with another Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 42 1 2 3 computer. Q. Global Village." 4 5 Objection. Vague and ambiguous. THE WITNESS: That was a book that I wrote about the Internet 1996 World Exposition. 8 9 What was that item about? MR. BRIDGES: 6 7 The next item, "The World's Fair For the This listing is incorrect in the sense of there were two additional contributors to that 10 book. 11 BY MR. HUDIS: 12 13 14 Q. And who were the two additional contributors? A. The afterword was by a musician named 15 Laurie Anderson. 16 the Dalai Lama. 17 18 Q. And generally what was the book, "The World's Fair For the Global Village," about? 19 20 The foreword was by his holiness, MR. BRIDGES: Objection. Vague and ambiguous. 21 THE WITNESS: It was a description of the 22 Internet 1996 World Exposition, which I was a 23 co-founder of, and served as secretary general. 24 BY MR. HUDIS: 25 Q. The next item, "Ingres: Tools for building Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 43 1 an information architecture." 2 about? 3 4 MR. BRIDGES: What was that item Objection. Vague and ambiguous. 5 THE WITNESS: It is a professional 6 reference book about the Ingres relational database 7 management system. 8 BY MR. HUDIS: 9 Q. 10 11 THE REPORTER: 14 15 16 17 It is a professional book about the Ingres -- 12 13 Could you describe the Ingres -- THE WITNESS: Professional reference book. BY MR. HUDIS: Q. Could you describe for me what is the Ingres information database management system? A. That's the Ingres relational database management system. 18 Q. Thank you. 19 A. RDMS. 20 Q. And could you describe what it is, please? 21 A. It is one of the two early relational 22 database management systems. 23 system called Oracle that is very popular today. 24 25 Somewhat akin to a Ingres and DB2 were the original two relational database systems. That's capital D, Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 44 1 capital B letter 2. 2 Q. Could you tell me the next item, what it is 3 about, "Analyzing DECnet/OSI phase Roman Numeral 4 V"? 5 6 MR. BRIDGES: Objection. Vague and ambiguous. 7 THE WITNESS: My first book about DEC was 8 about something known as DECnet phase IV. 9 book was about the successor to DECnet phase IV, a This 10 system of international protocols known as open 11 systems interconnect, or OSI, and this was a 12 professional reference book that discussed in 13 detail the protocols inherent in that protocol 14 suite. 15 BY MR. HUDIS: 16 17 18 19 20 Q. In simple terms, what -- what are -- what is the purpose of those protocols? MR. BRIDGES: Objection. Vague and ambiguous. THE WITNESS: OSI was an alternative to 21 TCP/IP, which is the foundation of today's 22 Internet. 23 goes -- that describes all the different 24 capabilities that computers will have when they 25 communicate with each other. So it is a full protocol suite that Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 45 1 2 3 BY MR. HUDIS: Q. protocol? 4 5 So it's an Internet communications MR. BRIDGES: Objection. Misstates testimony; vague and ambiguous. 6 THE WITNESS: It's a protocol suite, and 7 that is a whole set of protocols. 8 BY MR. HUDIS: 9 Q. 10 11 For Internet communications? MR. BRIDGES: Objection. Vague and ambiguous. 12 THE WITNESS: No, because Internet 13 communications is the Internet protocol suite. 14 This was an alternative that was devised, and it 15 was, in effect, a competitor to the Internet. 16 BY MR. HUDIS: 17 18 Q. So it's computer-to-computer communications? 19 20 All right. MR. BRIDGES: Objection. Vague; misstates testimony; vague and ambiguous. 21 THE WITNESS: Computer-to-computer 22 communications, routing protocols, and a whole 23 suite of other functions that make up a protocol 24 suite. 25 suite. Again, equivalent to the Internet protocol Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 46 1 2 3 BY MR. HUDIS: Q. So the next item, "Exploring the Internet, a Technical Travelogue," t-r-a-v-e-l-o-u-g-e. 4 What was that item about? 5 MR. BRIDGES: 6 Objection. Vague and ambiguous. 7 THE WITNESS: That was a book I wrote that 8 described three trips I made around the world to 9 visit people that were creating what has become our 10 modern Internet. 11 BY MR. HUDIS: 12 Q. The next item in Exhibit 15, "Stacks: 13 Interoperability in today's computer networks." 14 What was that item about? 15 16 MR. BRIDGES: Objection. Vague and ambiguous. 17 THE WITNESS: That was a professional 18 reference book that described a series of new and 19 emerging topics in the field of computer networks 20 aimed at advanced networking engineers. 21 way of letting them know what was coming around -- 22 around the corner. 23 BY MR. HUDIS: 24 25 Q. It was a The next item on which you are co-author with many authors, what is the next item, "Law.gov Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 47 1 workshops"? 2 MR. BRIDGES: Objection. Lacks foundation; 3 vague and ambiguous; assumption facts not in 4 evidence. 5 THE WITNESS: Yeah, co-author is incorrect. 6 And this really is not a bibliographic item. 7 BY MR. HUDIS: 8 9 10 Q. Then what is that item, "Law.gov workshops"? A. I organized a series of 15 workshops around 11 the country focused on the issue of promulgation of 12 primary legal materials in the United States. 13 Q. And were these individuals who were named 14 with you in this reference, lecturers with you on 15 that same series of workshops? 16 17 MR. BRIDGES: Objection. Lacks foundation; assumes facts not in evidence; vague and ambiguous. 18 THE WITNESS: Lecturers would be an 19 incorrect characterization. 20 participants in one or more of the workshops. 21 BY MR. HUDIS: These were all 22 Q. What do you mean by "participants"? 23 A. In each case these people made a brief 24 25 presentation and then participated in discussions. Q. The next item, "Analyzing Novell networks." Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 48 1 What was that item about? 2 3 MR. BRIDGES: Objection. Vague and ambiguous. 4 THE WITNESS: It was a professional 5 reference book about the Novell networking protocol 6 suite. 7 previously discussed analyzing DECnet OSI phase V. 8 This was a companion volume to that. 9 BY MR. HUDIS: 10 11 12 Q. It was part of a three-volume series we had And what was the subject matter of that companion volume? A. The Novell protocol suite, which was 13 another mechanism for computers to communicate with 14 computers, like OSI, or what we know of as the 15 Internet today. 16 Q. And the next item, what is -- what was 17 "Global network operations"? 18 MR. BRIDGES: 19 vague and ambiguous. 20 THE WITNESS: Objection. Lacks foundation; That's another one of those 21 audio interviews I did with network engineers as 22 part of the program Geek of the Week. 23 BY MR. HUDIS: 24 25 Q. What was the subject of that interview? MR. BRIDGES: Objection. Vague and Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 49 1 ambiguous. 2 THE WITNESS: There were four different 3 interviews. 4 in one aspect or another of global network 5 operations on the emerging Internet computer 6 network. 7 BY MR. HUDIS: 8 Q. 9 10 Each of these individuals was involved And what was your involvement in this item? MR. BRIDGES: Objection. Vague and ambiguous. 11 THE WITNESS: 12 of Geek of the Week. 13 BY MR. HUDIS: 14 15 16 17 18 Q. I was the host and producer And the last item on this list, what was "Analyzing Sun networks"? MR. BRIDGES: Objection. Vague and ambiguous. THE WITNESS: That was a professional 19 reference book. 20 series that included analyzing DECnet OSI, 21 analyzing Novell networks. 22 It was part of a three-volume The analyzing Sun networks volume had to do 23 with the TCP/IP protocol suite, which is known 24 today as the Internet. 25 BY MR. HUDIS: Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 50 1 Q. Mr. Malamud, what experience do you have 2 working with textual databases, converting them 3 into new formats and making them available on the 4 Internet? 5 MR. BRIDGES: Objection. Massively 6 overbroad and vague; ambiguous; lacks foundation 7 and compound. 8 9 10 THE WITNESS: I have -- I'm sorry, could you repeat that question? BY MR. HUDIS: 11 Q. Yes. 12 A. There were a lot of parts to that. 13 Q. Yes. 14 What experience do you have working with 15 textual databases, converting them into new formats 16 and making them available on the Internet? 17 MR. BRIDGES: Same objections. 18 add another objection of argumentative. 19 And I'll BY MR. HUDIS: 20 Q. 21 You may answer. MR. BRIDGES: And to the extent there's a 22 legal conclusion implied in that, I would object on 23 that basis as well. 24 25 THE WITNESS: example? So would you like a specific Is that what you're looking for? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 51 1 BY MR. HUDIS: 2 Q. Yes. 3 A. Okay. In 1991 and '92, I worked with my 4 colleague, Michael Swartz, a professor at the time 5 at the University of Colorado, to convert the 6 international telecommunication union protocol 7 specifications into a format that was viewable on 8 the Internet, and then I posted those standards on 9 the Internet. 10 Q. And what do you mean by "posted"? 11 A. In those days, posting meant making textual 12 13 14 files available using the FTP protocol. Q. And when you say make available, do you mean make available on the Internet? 15 MR. BRIDGES: 16 vague and ambiguous. 17 THE WITNESS: Objection. Lacks foundation; That database was distributed 18 using a facility known as anonymous FTP, which was 19 a mechanism that allowed anybody to access the 20 material that was connected to the Internet. 21 BY MR. HUDIS: 22 Q. Can you give me any other examples that 23 come to mind of your experience with working with 24 textual databases, converting them into new formats 25 and making them available on the Internet? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 52 1 MR. BRIDGES: All the same objections as to 2 earlier. 3 potentially -- and argumentative; potentially 4 calling for a legal conclusion. 5 Vague and ambiguous; lacks foundation; THE WITNESS: In 1993 and 1994 I headed a 6 project that took magnetic tapes that we purchased 7 from the Securities and Exchange Commission's 8 vendor, and converted those files into a database 9 accessible on the Internet using a variety of 10 access mechanisms. 11 BY MR. HUDIS: 12 Q. Can you give me any other examples of your 13 experience in working with textual databases, 14 converting them into new formats and making them 15 available on the Internet? 16 MR. BRIDGES: All the same objections. 17 Vague and ambiguous; lacks foundation; 18 argumentative; potentially calling for legal 19 conclusion; compound. 20 THE WITNESS: A third example is I 21 purchased the magnetic tapes that were produced by 22 the United States Patent and Trademark Office 23 consisting of the patent database and the trademark 24 database. 25 that was compatible with Internet access and posted I then converted that data into a format Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 53 1 that information using a variety of access 2 mechanisms. 3 BY MR. HUDIS: 4 Q. Mr. Malamud, what experience, if any, do 5 you have working with printed textual materials, 6 converting them into new formats and making them 7 available on the Internet? 8 9 10 MR. BRIDGES: Same objections. Vague and ambiguous; lacks foundation; argumentative; possibly calling for a legal conclusion. 11 THE WITNESS: I was responsible for 12 procuring, scanning, processing and posting the 13 historical opinions of the court of appeals known 14 as the National Reporter System, as well as the 15 federal cases, which was the predecessor to the 16 National Reporter System. 17 BY MR. HUDIS: 18 19 Q. And what did you -- what did you do with those reporter systems? 20 MR. BRIDGES: 21 Vague and ambiguous. 22 Objection. BY MR. HUDIS: 23 Q. In your last answer, you said you were 24 responsible for procuring, scanning, processing and 25 posting historical opinions. What did you mean by Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 54 1 2 "processing"? A. Processing involved a number of steps, 3 beginning with the scanning of the documents, and 4 proceeded to include a process known as 5 double-keying, which is a way of converting the 6 printed page into, in our case, valid HTML files 7 with proper metadata. 8 9 10 Q. In your last answer, what did you mean by double-keying? A. Double-keying is a technical term of art 11 used by legal publishers. 12 having the information typed independently twice, 13 and then the two copies compared to each other as a 14 way of looking for errors in the transcription. 15 Q. It is the process of Is there such a thing as triple-keying? 16 MR. BRIDGES: 17 vague and ambiguous. 18 THE WITNESS: 19 Objection. Lacks foundation; Yes. BY MR. HUDIS: 20 Q. And what is that process? 21 A. That process is independently typing the 22 23 data three times and comparing the results. Q. What did you mean by "valid HTML files"? 24 MR. BRIDGES: Objection. 25 THE WITNESS: A valid HTML file is one that Lacks foundation. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 55 1 conforms to one of the HTML specifications that are 2 produced by the W3C organization, which is the 3 standards making body for HTML. 4 BY MR. HUDIS: 5 Q. 6 7 8 And what is a valid HTML file? MR. BRIDGES: Objection. BY MR. HUDIS: Q. Under that protocol? 9 MR. BRIDGES: 10 vague and ambiguous. 11 THE WITNESS: It is a file that -- 12 MR. BRIDGES: May call for -- may be a 13 Objection. Lacks foundation; hypothetical and call for speculation. 14 THE WITNESS: It's a file that conforms to 15 the protocol specification, the contents of which 16 conform to what the protocol says it should. 17 BY MR. HUDIS: 18 19 Q. And what's the significance of the HTML file conforming to the specification? 20 MR. BRIDGES: 21 vague and ambiguous. 22 THE WITNESS: Objection. Lacks foundation; Well, it's important that a 23 file posted on a web server conform to the HTML 24 standard because that means that a browser or other 25 client will correctly parse the data and display it Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 56 1 to the user or perform other actions on that HTML 2 file. 3 BY MR. HUDIS: 4 Q. And what did you mean by "proper metadata"? 5 MR. BRIDGES: Objection. 6 THE WITNESS: There are a number of Lacks foundation. 7 specifications that list the metadata that -- 8 specifications and best current practices that list 9 the metadata that should be, in this case, in the 10 header section of an HTML file. 11 is the title of the document. 12 BY MR. HUDIS: 13 14 Q. An example of that Do you have any experience, Mr. Malamud, working with graphic design web tools? 15 MR. BRIDGES: 16 ambiguous; lacks foundation. 17 THE WITNESS: 18 19 20 21 Objection. Vague and Yes. BY MR. HUDIS: Q. Can you give me some examples of the types of graphic design web tools you've worked with? A. So graphic design web tools is kind of a 22 broad example. 23 I certainly have used programs such as Photoshop 24 and tools for authoring, SVG graphics, for example. 25 Q. And I'm not a graphic designer, but What about MathML? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 57 1 2 MR. BRIDGES: Objection. Vague and ambiguous. 3 THE WITNESS: Well, that's not a graphic 4 design tool. 5 expressing mathematical formulas, and I am, in 6 fact, familiar with that specification. 7 BY MR. HUDIS: 8 9 Q. And how long have you been working with graphic design web tools such as SVG and Photoshop? 10 11 MathML is a specification for MR. BRIDGES: Objection. Lacks foundation; vague and ambiguous; compound. 12 THE WITNESS: I've been using graphic 13 design tools since the early '80s, but that's 14 before the web, so ... 15 BY MR. HUDIS: 16 Q. All right. And have you been using graphic 17 design web tools since the advent of the web, say, 18 mid 1990s? 19 MR. BRIDGES: 20 vague and ambiguous. 21 THE WITNESS: Objection. Lacks foundation; I've been building websites 22 since the web began, and as part of that process 23 one uses graphic design web tools, as you call 24 them. 25 BY MR. HUDIS: Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 58 1 2 Q. professional associations? 3 4 MR. BRIDGES: 7 8 THE WITNESS: 11 12 Vague and Professional associations? BY MR. HUDIS: Q. For example, I am a member of the American Intellectual Property Law Association. 9 10 Objection. ambiguous. 5 6 Mr. Malamud, are you a member of any So are you a member of any professional associations? A. Well, I'm a member of EFF. I don't know if that counts. 13 MR. BRIDGES: 14 testify as to what he knows. 15 understand the question, then he should ask for a 16 further explanation of the question. 17 18 THE WITNESS: I'll ask the witness to If he doesn't Yes, sir. BY MR. HUDIS: 19 Q. Do you understand my question? 20 A. Vaguely. 21 22 23 24 25 It's a broad question. "No" I think is the proper answer. Q. Are you -- are you a member of any engineering societies? MR. BRIDGES: Objection. Vague and ambiguous. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 59 1 THE WITNESS: I was a participant in the 2 Internet Engineering Task Force. 3 BY MR. HUDIS: 4 Q. When was that? 5 A. Late '80s to mid '90s. 6 actually. 7 Later than that, participant. 8 Q. I was, all the way through 2005 I was a Is that organization still in existence? 9 MR. BRIDGES: 10 vague and ambiguous. 11 THE WITNESS: 12 13 14 15 Objection. Lacks foundation; Yes. BY MR. HUDIS: Q. What was your affiliation with the Internet Engineering Task Force? A. I played a number of roles. I was a 16 creator of Internet drafts and requests for 17 comments, which is the proposals for standards and 18 standards that are created by the Internet 19 Engineering Task Force. 20 Q. What's a standard? 21 MR. BRIDGES: 22 vague and ambiguous. 23 THE WITNESS: Objection. Lacks foundation; A standard is a document that 24 was marked by the Internet Engineering Task Force 25 as being a standard. It's a decision made by the Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 60 1 management organization of the IETF. 2 BY MR. HUDIS: 3 Q. I don't think that answers my question. 4 What do you understand to be a standard? 5 MR. BRIDGES: 6 Asked and answered. He did answer your question. 7 MR. HUDIS: 8 THE WITNESS: Well, are you -- 9 MR. BRIDGES: Vague and ambiguous; lacks 10 I disagree, Counsel. foundation. 11 THE WITNESS: 12 IETF standards? 13 Do you want to know what an BY MR. HUDIS: 14 15 Q. understanding of a standard is? 16 17 No, I want to know generally what your MR. BRIDGES: Objection. Vague; lacks foundation in context; argumentative. 18 THE WITNESS: It is a very vague question 19 in the sense that a standard is anything that the 20 organization publishes or creates or says. 21 standard. 22 BY MR. HUDIS: 23 24 25 Q. It's a Is a standard a set of norms that an organization would like others to follow? MR. BRIDGES: Objection. Entirely lacks Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 61 1 foundation; vague and ambiguous. 2 THE WITNESS: It depends -- 3 MR. BRIDGES: And may call for opinion 4 testimony. 5 may be argumentative. 6 It may call for legal conclusion. THE WITNESS: 7 organization. 8 Again, it depends on the is. 9 And BY MR. HUDIS: 10 11 12 Q. I can tell you what an IETF standard Give me an example of what an IETF standards is. A. IETF standard is a document that the IETF 13 believes should be widely adopted that describes a 14 set of best practices or mechanisms involved in 15 some aspect of computer networking. 16 17 MR. BRIDGES: I'll ask the witness to listen to the question and answer the question. 18 The question was, give me an example of an 19 IETF standard. 20 BY MR. HUDIS: 21 Q. You said that you are a member of EFF and 22 that in the past you were a member of the Internet 23 Engineering Task Force. 24 25 Have you been a member of any other professional associations? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 62 1 2 MR. BRIDGES: Objection. Misstates testimony; vague and ambiguous; lacks foundation. 3 THE WITNESS: 4 It has participants. 5 distinction. 6 7 8 9 IETF does not have members. That's an important And no, I have not. BY MR. SPEAR: Q. Mr. Malamud, I would like to discuss with you, your professional experience since you 10 received your MBA from Indiana University in 1983 11 or 1984. 12 13 14 15 After you received your MBA, what was the first gainful employment that you had? A. So you just want to know about my employment after my MBA? 16 Q. Yes. 17 A. Okay. I -- after my MBA, my next job was 18 as the Board of Governors of the Federal Reserve 19 System. 20 Q. What did you do there? 21 A. I worked with a small group to create a 22 plan and implement the plan for putting computer 23 networks into the research division of the Board of 24 Governors of the Federal Reserve System. 25 Q. Do you remember what your title was at the Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 63 1 Board of Governors of the Federal Reserve? 2 A. Senior systems analyst. 3 Q. How long did you hold that position? 4 A. One year as an employee. 5 Q. So was that 1983 to 1984? 6 A. It was 1984, I'm pretty sure. 7 Q. You said one year as an employee. At some 8 point were you a consultant for the Board of 9 Governors of the Federal Reserve? 10 A. Subsequent to my year of employment, I 11 became a consultant to the Board of Governors of 12 the Federal Reserve System. 13 Q. And how long were you a consultant? 14 A. Approximately a year. 15 Q. So that would have been 1985? 16 A. Approximately. 17 Q. What did you do for the Board of Governors 18 of the Federal Reserve as a consultant? 19 A. The same thing I did as an employee. 20 Q. What was your next position of gainful 21 22 23 employment? A. I was a consultant to a number of government agencies. 24 Q. Do you remember which ones? 25 A. Yes, I do. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 64 1 Q. 2 3 4 5 6 Please -MR. BRIDGES: Go ahead. BY MR. HUDIS: Q. Please tell me which ones they are. Or were. A. The Department of Defense, the Joint Chiefs 7 of Staff, Argon National Laboratory, Lawrence 8 Livermore National Laboratory. 9 Q. 10 11 12 Let's put some time frames on this. When were you a consultant for the Department of Defense? A. I don't remember the exact dates. My 13 consulting business was predominantly from 1985 14 into the late 1980s. 15 16 Q. Approximate -- approximately what year? 1989, your consulting business? 17 A. Yes, as a -- yes. 18 Q. So your consulting business was for all of 19 these clients, the Department of Defense, the Joint 20 Chiefs of Staff, Argon and Lawrence Livermore? 21 22 23 MR. BRIDGES: Objection. Vague and ambiguous. THE WITNESS: 24 two aspects. 25 My consulting business had government agencies. One was consulting with the Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 65 1 2 The other was giving advanced seminars on computer networks and relational databases. 3 MR. BRIDGES: 4 answer the question. 5 beyond the question, he can ask about those. 6 BY MR. HUDIS: 7 Q. I'll ask the witness to If he wants to invite you And the part of your consulting business 8 working with government agencies, what did that 9 entail? 10 11 MR. BRIDGES: Objection. Vague and ambiguous. 12 THE WITNESS: I worked in the area of 13 relational databases and computer networking. 14 BY MR. HUDIS: 15 Q. What do you mean by "relational databases"? 16 A. The Ingres relational database management 17 system. 18 Q. That you described before? 19 A. Yes. 20 Q. All right. After your consulting business 21 ended in approximately 1989, what did you do next 22 for gainful employment? 23 A. In the late '80s, around 1988, I began 24 writing, and by I'm pretty sure '89, I was making 25 my living as a writer. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 66 1 Q. And what was the subject of your writings? 2 MR. BRIDGES: Objection. 3 THE WITNESS: That's the documents that we Vague. 4 went over, the professional reference books. 5 BY MR. HUDIS: 6 Q. That was the references in Exhibit 15? 7 A. That's correct. 8 MR. BRIDGES: I do want to note for the 9 record an objection generally to Exhibit 15. 10 appears to be a printout of documents from a 11 catalog. 12 of results, pursuant to a selection that we assume 13 was made by plaintiffs' counsel, rather than a 14 straight printout of all responsive items. 15 BY MR. HUDIS: 16 17 It Q. It appears to have been an incomplete set And how long did you make your living as a writer? 18 A. Through 1992. 19 Q. And what did you do for gainful employment 20 21 22 starting in 1992? A. I founded the Internet Multicasting Service. 23 Q. Is that company still in existence today? 24 A. No. 25 Q. How long was the Internet Multicasting Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 67 1 Service in existence? 2 A. It was active through 1997. 3 Q. What was the nature of the business of the 4 5 Internet Multicasting Service? A. The Internet Multicasting Service was a 6 501(c)(3) nonprofit that was engaged in creating 7 new services for the Internet. 8 Q. What types of new services? 9 A. One example was I created the first radio 10 station on the Internet. 11 Q. Any other examples? 12 A. A second example is we took the Securities 13 and Exchange Commission EDGAR database and made it 14 available on the Internet for the public to use. 15 Q. Any others examples? 16 A. A third example is we took the U.S. patent 17 And Trademark database and made it available on the 18 Internet for the public to use. 19 Q. Any other examples? 20 A. A fourth example is we created the Internet 21 1996 World Exposition, a World's Fair for the 22 Internet. 23 Q. And what was that? 24 A. It -- 25 MR. BRIDGES: Objection. Vague and Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 68 1 ambiguous. 2 THE WITNESS: It was a set of activities 3 taking place in 50 countries around the world 4 modeled on the metaphor of a world's fair. 5 BY MR. HUDIS: 6 7 Q. And what activities were taking place in the 50 countries? 8 9 MR. BRIDGES: Objection. Vague and ambiguous. 10 THE WITNESS: 11 In Japan there were street festivals, for 12 A huge number of activities. example. 13 In Taiwan there were thousands of computers 14 throughout the country that people could go up to 15 and learn about the Internet, which was a new 16 phenomenon in those days. 17 BY MR. HUDIS: 18 19 Q. Those are two examples. What was the general theme of Internet 1996 a world's fair? 20 A. A world's fair for the information age. 21 Q. Was it a general theme of teaching people 22 23 24 25 about the Internet? MR. BRIDGES: Objection. Misstates the testimony; vague and ambiguous. THE WITNESS: There were two goals. Alderson Reporting Company 1-800-FOR-DEPO One Carl Malamud May 12, 2015 San Francisco, CA Page 69 1 was teaching the world about the Internet and what 2 it could do. 3 contribution to Internet infrastructure. 4 BY MR. HUDIS: 5 6 7 Q. The second was to make a substantial What did you mean by "Internet infrastructure"? A. I can give you two examples. One is, with 8 a contribution of two terabytes of disc from 9 Quantum and a set of large scale computers from Sun 10 Microsystems, we were able to put large computers 11 in different locations around the world, which were 12 mirroring common Internet databases, such as the 13 world's fair website. 14 Q. Have you told me all of the services you 15 can remember that were conducted by the Internet 16 Multicasting Service? 17 18 19 MR. BRIDGES: Objection. Vague and ambiguous; lack of foundation. THE WITNESS: There's at least two more. 20 We ran north.pole.org, which was the first home for 21 Santa Claus on the Internet. 22 A second example is with my colleague 23 Dr. Marshall T. Rose, we created a service called 24 TPC.int, TPC standing for the phone company. 25 BY MR. HUDIS: Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 70 1 Q. And what was that service? 2 A. TPC.int was a mechanism that allowed an 3 individual to send electronic mail which would then 4 go to a fax machine that was addressed by its phone 5 number. 6 Q. Have you told me all of the services you 7 can remember that were performed by the Internet 8 Multicasting Service? 9 10 MR. BRIDGES: Objection. Vague and ambiguous. 11 THE WITNESS: I'm sure we had a number of 12 other small websites, what we would call a 13 microsite today. 14 BY MR. HUDIS: 15 Q. Anything else? 16 MR. BRIDGES: Same objection. 17 THE WITNESS: Those were our main 18 activities. 19 BY MR. HUDIS: 20 Q. And what did you do for gainful employment 21 after the Internet Multicasting Service was no 22 longer in business? 23 24 25 A. In 1996 I went to the MIT Media Lab where I was a visiting professor. Q. How long were you a visiting professor at Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 71 1 the MIT Media Lab? 2 A. Maybe eight months. 3 Q. After your terms of term as visiting Eight or nine months. 4 professor at the MIT Media Lab, what did you do 5 next for gainful employment? 6 7 8 9 10 11 A. I was a visiting professor at Keio University, K-e-i-o, in Japan. Q. What kinds of courses did you teach at the MIT Media Lab? A. I did not. I consulted with students and I wrote a book. 12 Q. What was the book? 13 A. "The Internet 1996 World Exposition." 14 Q. How long were you a visiting professor at 15 Keio University in Japan? 16 A. I'd say about six months. 17 Q. What year was that? 18 A. '97. 19 Q. What kinds of courses, if any, did you 20 21 22 teach at Keio University? A. I did not. I consulted with the faculty and with graduate students. 23 Q. What was the nature of the consultations? 24 A. Doctoral dissertations concerned with the 25 Internet and networking protocols. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 72 1 2 Q. Was that the same type of consultations that you did at the MIT Media Lab? 3 MR. BRIDGES: 4 vague and ambiguous. 5 THE WITNESS: 6 7 8 9 Objection. Lacks foundation; Yes, that's correct. BY MR. HUDIS: Q. After your employment with Keio University, what next did you do for gainful employment? A. I spent a few months in Amsterdam at RIPE, 10 which is the Internet numbering authority for the 11 European region. 12 MR. BRIDGES: Mr. Hudis, I think I'm going 13 to need a break in a minute or two. 14 convenient time? 15 MR. HUDIS: 16 THE VIDEOGRAPHER: 17 Is this a Yes, let's take a break. The time is 10:50, and we are off the record. 18 (Recess taken.) 19 THE VIDEOGRAPHER: 20 we are back on the record. 21 The time is 11:01, and BY MR. HUDIS: 22 23 24 25 Q. Mr. Malamud, how long were you employed at RIPE? A. I was not employed at RIPE. residence at RIPE. Alderson Reporting Company 1-800-FOR-DEPO I was in Carl Malamud May 12, 2015 San Francisco, CA Page 73 1 Q. How long were you in residence at RIPE? 2 A. Just a few months. 3 Q. So what year was that? 4 A. 1997. 5 Q. What did you do at RIPE? 6 MR. BRIDGES: 7 Vague and ambiguous. 8 Objection. BY MR. HUDIS: 9 Q. What, if anything, did you do at RIPE? 10 A. I learned about the operation of Internet 11 12 13 14 15 16 17 number registries. Q. After RIPE, what was your next place of gainful employment? A. I was the founder and chief executive officer of Invisible Worlds. Q. What was the nature of that business, Invisible Worlds? 18 A. It was an Internet startup. 19 Q. What do you mean by Internet startup? 20 A. It was a new company that was attempting to 21 create a new service for the Internet. 22 Q. And what service was that? 23 A. In today's parlance, it was a semantic web 24 25 company. Q. And what does that mean? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 74 1 A. It's a little complicated. It was involved 2 with transferring metadata between different 3 computers on the Internet. 4 Q. Is that company still in existence? 5 A. No, it is not. 6 Q. How long was that company in existence? 7 A. It was formally dissolved, I believe, in 8 2002. 9 Q. So it was in existence from 1997 to 2002? 10 A. 1998 through 2001 was the active period of 11 the company. 12 MR. BRIDGES: I'll ask the witness to 13 answer the precise question asked. 14 BY MR. HUDIS: 15 16 Q. And it was just an inactive period from 2001 to 2002? 17 A. Yes. 18 Q. What did you do next for gainful employment 19 20 after Invisible Worlds? A. I was a co-founder and CEO of a company 21 called NetTopBox, Inc., all one word, capital N, 22 capital T, capital B. 23 Q. Is that company still in existence? 24 A. No, it is not. 25 Q. When was it in existence? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 75 1 A. I'm trying to refresh my memory here. 2 believe 2001 through 2003. 3 I those dates. 4 5 6 7 8 9 Q. I may be off a year on What was the nature of the business of NetTopBox, Inc.? A. It was an attempt to create an electronic programming guide for the Internet. Q. What do you mean by "electronic programming guide"? 10 A. 11 Guide. 12 Q. 13 14 In layman's terms, something like the T.V. After NetTopBox, Inc. was dissolved, what did you do next for gainful employment? A. I was hired as a consultant by the Internet 15 Architecture Board and Internet Engineering Task 16 Force. 17 Q. How long were you a consultant for the 18 Internet Architecture Board and Internet 19 Engineering Task Force? 20 MR. BRIDGES: Objection. 21 THE WITNESS: A little over a year. 22 Compound. BY MR. HUDIS: 23 Q. So that would have been 2004? 24 A. Yeah, '04 to '05. 25 Q. And what was the nature of your consultancy Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 76 1 with these organizations? 2 A. I was charged with investigating and 3 proposing mechanisms for the governance of the 4 Internet standards-making process. 5 Q. And if you could briefly describe what that 6 means, "mechanisms for the governance of the 7 Internet standards-making process"? 8 9 A. The core issue I investigated was the proper institutional home for the Internet 10 Engineering Task Force, which at the time was an 11 unincorporated association. 12 Q. 13 home"? 14 A. What did you mean by "proper institutional That was actually the question I was 15 investigating, what should that institutional home 16 be. 17 Q. 18 home"? Well, what did you mean by "institutional 19 MR. BRIDGES: Objection. 20 THE WITNESS: I can tell you what the 21 conclusion was of that process. 22 Lacks foundation. BY MR. HUDIS: 23 Q. What was the conclusion of that process? 24 A. That the Internet society would provide 25 the -- the corporate framework that would then run Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 77 1 the Internet Engineering Task Force and the 2 associated standards-making process. 3 Q. Back to your consultancy with the 4 Architectural Board and the Internet Engineering 5 Task Force. 6 employment? 7 8 9 A. What did you do for gainful I worked at the Center for American Progress. Q. What's the nature of that business? 10 MR. BRIDGES: 11 vague and ambiguous. 12 THE WITNESS: 13 Objection. Lacks foundation; It is a 501(c)(3) think tank. BY MR. HUDIS: 14 Q. And what did you do there? 15 A. I was a senior fellow and the chief 16 technology officer. 17 Q. And what years was that? 18 A. 2005 to 2006. 19 Q. What did you do next for gainful 20 employment? 21 A. I founded Public.Resource.Org. 22 Q. And that was in 2007? 23 A. That's correct. 24 Q. Are you presently employed by 25 Public.Resource? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 78 1 A. I am. 2 Q. And you are the founder of Public.Resource? 3 A. I am. 4 Q. What is your current title with 5 Public.Resource? 6 A. Founder and president. 7 Q. Is that the position you have held from 8 2007 until today? 9 A. It is. 10 Q. What is your -- what are your duties and 11 responsibilities as founder and president of 12 Public.Resource? 13 MR. BRIDGES: 14 ambiguous; compound. 15 THE WITNESS: Objection. Vague and I'm responsible for the 16 activities of Public.Resource.Org. 17 BY MR. HUDIS: 18 Q. What are those activities? 19 A. Well, there's the governance of the 20 corporation. 21 Q. What else? 22 A. There is the operation of websites and 23 24 25 Internet services. Q. What types of websites and services does Public.Resource provide? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 79 1 A. There's a number of different services. 2 Q. Could you name them for me, please? 3 A. Sure. 4 5 6 7 8 Public.Resource.Org is our main corporate website. Q. And what kind of information is on the Public.Resource.Org site? A. It has speeches by me. Correspondence. And governance information, such as financials. 9 Q. Anything else? 10 A. A number of web pages describing our 11 interaction with a number of government agencies. 12 Q. What kinds of interactions? 13 A. Well, for example, there is a page devoted 14 to USCourts.gov, which contains a number of letters 15 back and forth with officials about the PACER 16 system and court of appeals decisions. 17 18 Q. Does Public.Resource operate any other websites? 19 A. Yes, we do. 20 Q. Could you name another one, please? 21 A. House.resource.org. 22 Q. What is provided on House.resource.org? 23 A. That is a system that I created in 24 cooperation with the United States House of 25 Representatives at the request of Speaker Boehner Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 80 1 and Chairman Darrell Issa. 2 congressional hearings. 3 Q. 4 It contains video from Anything else? MR. BRIDGES: 5 Vague and ambiguous. 6 Objection. BY MR. HUDIS: 7 Q. Does the House.resource.org website provide 8 anything else besides video from congressional 9 hearings? 10 A. There's some correspondence that was back 11 and forth between myself and Congress as part of 12 this effort. 13 14 Q. Does Public.Resource operate any other websites? 15 A. Yes. 16 Q. Could you tell me another one? 17 A. WWLBD.org, which stands for what would 18 19 20 21 22 Luther Burbank do? Q. What kind of information is provided on the WWLBD.org site? A. That is a site devoted to the seed catalogs that the Smithsonian Institution scanned. 23 Q. Spell, in that context, seed? 24 A. S-e-e-d. 25 Q. And literally is your website providing Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 81 1 2 information about seeds, plant seeds? A. It is covers of seed catalogs, which the 3 Smithsonian scanned and made available on a limited 4 and restricted basis. 5 6 Q. Just so I understand, do you mean seed, literally plant seed catalogs? 7 A. Yes, like Burpee. 8 Q. Is that all generally that the WWLBD.org 9 website provides? 10 11 MR. BRIDGES: Objection. Vague and ambiguous. 12 THE WITNESS: It is the seed catalog covers 13 and essay discussing the restrictions on use that 14 were imposed by the Smithsonian. 15 BY MR. HUDIS: 16 Q. Restrictions on use of what? 17 A. Of the seed catalog images. 18 Q. Does Public.Resource provide any other 19 websites? 20 A. Yes, we do. 21 Q. Could you name another one, please? 22 A. YesWeScan.Org. 23 Q. What type of information does YesWeScan.Org 24 25 provide? A. It has gone through several different life Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 82 1 times, if you will. 2 proposals that I authored about the operation of 3 the government printing office, and my 4 qualifications to be public printer of the United 5 States. 6 7 8 9 Q. It began with a series of Does the YesWeScan.Org website provide any other information? A. The second iteration of YesWeScan.Org was a letter from myself and John D. Podesta to President 10 Obama discussing the digitization of federal 11 archives. 12 13 14 Q. Does the YesWeScan.Org website provide any other information? A. The third iteration of YesWeScan.Org was an 15 effort to get individuals to fund, adopt the 16 double-keying of volumes of the Federal Reporter. 17 Q. That's West Federal Reporter? 18 A. F1. 19 Q. F first? 20 A. Yes. 21 Q. Does the YesWeScan.Org website provide any 22 23 So yes, the -- yes. other information? A. The most recent iteration was a crowd 24 funding exercise for the scanning and posting of 25 state statutes and codes. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 83 1 2 3 4 5 6 Q. Does the YesWeScan.Org website provide any other information? A. I think that's its four life times. I think that's correct. Q. Does Public.Resource operate any other websites? 7 A. Law.Resource.Org. 8 Q. What information is provided on the 9 Law.Resource.Org website? 10 A. Primary legal materials. 11 Q. Can you give me examples? 12 A. Court of appeals decisions. 13 Q. Anything else? 14 A. The federal cases. 15 Q. Anything else? 16 A. The California cases from Judge McAllister. 17 MR. BRIDGES: Just leave me time to object. 18 THE WITNESS: Yes. 19 BY MR. HUDIS: 20 Q. Anything else? 21 A. Materials incorporated by reference into 22 23 state and federal law. Q. What types of materials incorporated by 24 state and federal law are provided on the 25 Law.Resource.Org website? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 84 1 MR. BRIDGES: Objection. 2 THE WITNESS: An example is California's 3 Title 24. 4 Vague; ambiguous. BY MR. HUDIS: 5 6 Q. Is Title 24 a statute or a state regulation? 7 A. It's a regulation. 8 Q. Any other types of materials that are 9 posted on the Law.Resource.Org website? 10 11 MR. BRIDGES: Objection. Vague and ambiguous. 12 THE WITNESS: I think that's a good 13 description of what's on there, yes. 14 BY MR. HUDIS: 15 16 Q. Law.Resource.Org website? 17 18 Are standards posted on the MR. BRIDGES: Objection. Lacks foundation; vague and ambiguous; possibly argumentative. 19 THE WITNESS: Standards incorporated by 20 reference into federal and state regulations are on 21 the Law.Resource.Org website. 22 BY MR. HUDIS: 23 Q. 24 reference? 25 What do you mean by incorporation by MR. BRIDGES: Objection. May call for a Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 85 1 legal conclusion. 2 BY MR. HUDIS: 3 Q. 4 5 You may answer. MR. BRIDGES: Vague and ambiguous. BY MR. HUDIS: 6 Q. You may answer. 7 A. Incorporation by reference at the federal 8 level is a formal process which is run by the 9 Office of the Federal Register, which incorporates 10 specific materials into the Code of Federal 11 Regulations. 12 Q. And as a result of that formal process 13 engaged in by the Office of the Federal Register, 14 how are these materials incorporated by reference 15 into the Code of Federal Regulations? 16 17 MR. BRIDGES: Objection. May call for legal conclusion; vague and ambiguous. 18 THE WITNESS: 19 "how are." 20 I'm not sure what you mean by BY MR. HUDIS: 21 22 23 24 25 Q. How would I know that materials are incorporated into the Code of Federal Regulations? MR. BRIDGES: Objection. Hypothetical; calls for speculation; vague and ambiguous. THE WITNESS: The Code of Federal Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 86 1 Regulations itself will contain a very specific and 2 formal statement signifying that a particular 3 specific document was incorporated with the 4 approval of the director of the Office of the 5 Federal Register. 6 BY MR. HUDIS: 7 8 Q. And how are materials incorporated by reference at the state level? 9 MR. BRIDGES: Objection. Lacks foundation; 10 may call for a legal conclusion; may call for 11 opinion testimony; vague and ambiguous, and it may 12 be argumentative. 13 THE WITNESS: That's a very broad question. 14 I think it varies by state. 15 BY MR. HUDIS: 16 Q. Could you give me an example of how 17 material has been incorporated by reference at the 18 state level? 19 MR. BRIDGES: Same objections. 20 THE WITNESS: The State of California again 21 has very specific language that will be shown in 22 the California Code of Regulations, and it 23 specifically is the phrase "incorporated by 24 reference," and then a specific indicator to a very 25 specific standard and edition of that standard or Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 87 1 other document. 2 BY MR. HUDIS: 3 Q. Is material incorporated by reference into 4 state reg -- into federal regulations by the same 5 methods that you just described for the California 6 Code of Regulations? 7 MR. BRIDGES: Objection. Utterly lacks 8 foundation; vague and ambiguous; competence; may 9 call for speculation; may call for legal 10 conclusion; argumentative. 11 THE WITNESS: 12 processes. 13 They are two very separate BY MR. HUDIS: 14 Q. When material is incorporated by reference 15 at the federal level, does it contain specific 16 language that the material is incorporated by 17 reference? 18 MR. BRIDGES: Objection. Lacks foundation; 19 hypothetical; vague and ambiguous; competence; may 20 call for speculation; may call for opinion and 21 legal conclusion. 22 THE WITNESS: In order for the material to 23 be incorporated by reference in the Code of Federal 24 Regulations, it does require very specific 25 language, including the phrase "incorporated by Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 88 1 reference." 2 BY MR. HUDIS: 3 Q. Now, you said part of your duties and 4 responsibilities as founder and president of 5 Public.Resource was its governance and the websites 6 and services that it provides. 7 8 What are your other duties and responsibilities for Public.Resource, if any? 9 10 MR. BRIDGES: 13 14 Vague and ambiguous. 11 12 Objection. THE WITNESS: I give a number of speeches. BY MR. HUDIS: Q. And you give these speeches on behalf of Public.Resource? 15 A. Yes, that's my only professional activity. 16 Q. Is there anything else that you do on 17 behalf of Public.Resource? 18 A. I send letters. 19 Q. To whom? 20 A. To government officials, for example. 21 Q. For what purpose? 22 A. An example would be a FOIA request. 23 Q. Freedom of Information Act request? 24 A. That's correct. 25 Q. And what types of materials were you Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 89 1 looking for with these FOIA requests? 2 3 MR. BRIDGES: Objection. Vague and ambiguous. 4 THE WITNESS: An example was a FOIA request 5 to the Internal Revenue Service for the particular 6 format of the form 990, which is the filings of 7 exempt organizations. 8 BY MR. HUDIS: 9 10 11 Q. Can you give me another example of a FOIA request that you made to a government agency? A. I sent a large number of FOIA requests out 12 asking how much agencies spent on PACER and retail 13 legal information services. 14 Q. Have you told me all your duties and 15 responsibilities that you're aware of on behalf of 16 Public.Resource? 17 18 MR. BRIDGES: Objection. Argumentative; lacks foundation; vague and ambiguous. 19 THE WITNESS: 20 responsibilities. 21 No, I have other BY MR. HUDIS: 22 Q. Could you name them for me, please? 23 A. I handle our finances. So bookkeeping and 24 auditing and the -- the taxes. 25 supervising the litigation effort in which And I am engaged in Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 90 1 Public.Resource is currently engaged in. 2 Q. Anything else? 3 A. That's a good overview. 4 that's a good overview of what I do. 5 6 Q. Do you report to anybody at Public.Resource? 7 8 Yeah, no, I think MR. BRIDGES: Objection. Vague and ambiguous. 9 THE WITNESS: 10 directors. 11 I report to our board of BY MR. HUDIS: 12 13 Q. Public.Resource? 14 15 Does anybody report to you at MR. BRIDGES: Objection. Vague and ambiguous. 16 THE WITNESS: 17 me? 18 What do you mean "report" to BY MR. HUDIS: 19 20 Q. Somebody that you supervise as another officer of the corporation or employees. 21 A. No. 22 Q. Are there any other employees of 23 Public.Resource, besides yourself? 24 A. No. 25 Q. Mr. Malamud, since you have been president Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 91 1 and CEO of Public.Resource, do you get a salary? 2 A. Yes, I do. 3 Q. And how much is that salary? 4 5 MR. BRIDGES: deposition confidential subject to -- 6 7 We'll presumptively mark the THE WITNESS: We're 501(c)(3). My salary is published. 8 MR. BRIDGES: 9 Go ahead. 10 11 12 THE WITNESS: Okay, I withdraw that. $180,000 a year. BY MR. HUDIS: Q. And how long have you taken that as an 13 annual salary from Public.Resource? 14 years? 15 A. I think I've been at 180 for three years. 16 Q. And before that what was your annual 17 For how many salary? 18 A. I began at 144 and then -- yeah. 19 Q. And you've had increases since then in your 20 annual salary up to 180,000 a year? 21 MR. BRIDGES: 22 testimony; lacks foundation. 23 THE WITNESS: 24 Misstates I had one increase, if I recollect. 25 Objection. BY MR. HUDIS: Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 92 1 Q. So in 2007 until 2011 your salary was 2 approximately $144,000, and then from 2011 until 3 now your salary has been at approximately $180,000? 4 A. That's not correct. 5 144. 6 then up to 180. 7 My salary began at when those steps were. 8 9 10 There was a step to 160 at some point. Q. And And I don't recall the exact dates Presently, Mr. Malamud, do you have any other gainful employment besides your roles at public -- at Public.Resource? 11 A. I do not. 12 Q. Presently are you an officer of any other 13 companies? 14 A. No. 15 Q. Presently are you a director of any other 16 companies? 17 A. 18 Crawl. 19 Q. What is Common Crawl? 20 A. It is a 501(c)(3) nonprofit devoted to an 21 I am on the board of directors of Common open crawl of the Internet. 22 Q. What is an "open crawl of the Internet"? 23 A. A crawl is what a search engine such as 24 25 Google does. Q. And what is an open crawl? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 93 1 2 3 A. That is a crawl of the Internet that's available to others to openly use. Q. 4 Without restriction? MR. BRIDGES: 5 Vague and ambiguous. 6 Objection. BY MR. HUDIS: 7 Q. When you say it is a crawl of the Internet 8 that's available to others to openly use, what did 9 you mean by for "others to openly use"? 10 11 A. The data is available on the Amazon hosting service for any organization to use for analysis. 12 Q. 13 today? 14 A. I am not. 15 Q. Besides Common Crawl and Public.Resource, Are you an employee of any other companies 16 do you have any roles in any other nonprofit 17 organizations today? 18 MR. BRIDGES: 19 22 23 Vague and ambiguous. 20 21 Objection. THE WITNESS: No, I do not. BY MR. HUDIS: Q. And Public.Resource is an IRS 501(c)(3) nonprofit corporation? 24 A. It is. 25 Q. And it was incorporated in California in Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 94 1 2 2007? A. That's correct. 3 (PLAINTIFFS' EXHIBITS 16-18 WERE MARKED.) 4 MR. HUDIS: 5 record. 6 All right. Let's go off the the record. There's ten minutes left. 7 MR. BRIDGES: 8 MR. HUDIS: 9 And I'll do the marking with THE VIDEOGRAPHER: This marks the end of Disc 1, Volume 1 in the deposition of Carl Malamud. 12 13 Okay. you, Andrew. 10 11 So let's go off The time is 11:34 and we are off the record. 14 (Discussion off the record.) 15 THE VIDEOGRAPHER: This marks the beginning 16 of Disc 2, Volume 1 in the deposition of Carl 17 Malamud. 18 The time is 11:40, and we are on the 19 record. 20 BY MR. HUDIS: 21 22 23 24 25 Q. Mr. Malamud, what is the purpose of Public.Resource? MR. BRIDGES: Objection. Vague and ambiguous and may lack foundation. THE WITNESS: It's the creation and Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 95 1 maintenance of public works projects for the 2 Internet. 3 BY MR. HUDIS: 4 Q. 5 projects"? 6 A. 7 What do you mean by "public works Operational services that have real information that people can access. 8 Q. What do you mean by "operational services"? 9 A. Public works is a term that refers to a 10 creation of infrastructure that's used by the 11 public. 12 Internet. 13 14 Q. And in that regard what are the objectives of Public.Resource? 15 16 And that is what we attempt to do for the MR. BRIDGES: Objection. Vague; asked and answered; vague and ambiguous; lacks foundation. 17 THE WITNESS: I guess I don't understand 18 the difference between purpose and objective. 19 BY MR. HUDIS: 20 21 22 23 Q. Do you make no distinction between the two terms, purpose and objectives? MR. BRIDGES: Object -- objection. Counsel, he needs to understand your question. 24 MR. HUDIS: 25 MR. BRIDGES: Okay. You need to explain what you Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 96 1 mean. 2 MR. HUDIS: 3 MR. BRIDGES: 4 answer the question. 5 6 7 MR. HUDIS: Fair enough, Counsel. You can ask him -- he can Fair enough. BY MR. HUDIS: Q. In creating an infrastructure for the 8 Internet, what objectives does Public.Resource have 9 towards that goal? 10 11 MR. BRIDGES: Objection. Vague and ambiguous; confusing. 12 THE WITNESS: 13 useful to the public. 14 To create something that is BY MR. HUDIS: 15 Q. Could you give me an example? 16 A. Yes. 17 Q. Before the break you listed a number of The IRS database we created. 18 websites that are operated by Public.Resource. 19 want to make sure that I have them all. 20 Public.Resource.Org, USCourts.gov, 21 House.Resource.org, WWLBD.org, YesWeScan.Org, 22 Law.Resource.Org. 23 Have I named them all? 24 MR. BRIDGES: 25 vague and ambiguous. I Objection. Lacks foundation; Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 97 1 THE WITNESS: USCourts.gov is not a 2 website. 3 and the answer to your question is no. 4 BY MR. HUDIS: 5 6 Q. It is a web page on Public.Resource.Org, What other websites does Public.Resource operate? 7 A. There is Yo.YourHonor.org. 8 Q. What kind of information is provided on 9 Yo.YourHonor.org? 10 A. It is a discussion of the PACER system, 11 P-A-C-E-R, which is the public access to court 12 electronic records. 13 14 Q. you? 15 16 You're not a fan of the PACER system; are MR. BRIDGES: Objection. Argumentative; vague and ambiguous; lacks foundation. 17 THE WITNESS: I'm a big fan of the PACER 18 system. 19 information technology infrastructure. 20 BY MR. HUDIS: 21 22 Q. I think it's an essential piece of Do you have criticisms of how the PACER system is operated? 23 A. I do. 24 Q. And what are those criticisms? 25 MR. BRIDGES: Objection. Relevance. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 98 1 THE WITNESS: There's a number of issues 2 with the PACER system. 3 and pervasive set of violations of judicial 4 conference privacy rules, and we furnished that 5 information to the judicial conference in the form 6 of an audit, is one example. 7 BY MR. HUDIS: 8 9 10 Q. Are your criticisms of the PACER system posted as information to the Yo.YourHonor.org website? 11 12 We uncovered a systematic MR. BRIDGES: Objection. Vague and ambiguous. 13 THE WITNESS: There is a substantial essay 14 on the website that discusses a number of issues 15 having to do with the PACER system. 16 BY MR. HUDIS: 17 Q. Now, are these issues criticisms, 18 commentary, extolling the virtues of PACER? 19 type of information concerning PACER is posted on 20 Yo.YourHonor.org? 21 22 23 MR. BRIDGES: Objection. What Extraordinarily compound; vague and ambiguous. THE WITNESS: I would say all of the above. 24 It's a discussion of the PACER system. 25 BY MR. HUDIS: Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 99 1 Q. Have we discussed today all of the web 2 pages or websites operated today by 3 Public.Resource? 4 5 MR. BRIDGES: Objection. Compound; vague and ambiguous. 6 THE WITNESS: Also continue to operate a 7 number of the websites that originated with the 8 Internet Multicasting Service. 9 BY MR. HUDIS: 10 11 12 13 Q. please? A. North.pole.org. My.phone.org. 14 15 Could you name those websites for me, Park.org. Town.hall.org. Museum.media.org. I think that's all of them, but there could be a few that I'm missing. 16 Q. Is that all you remember today? 17 A. That's all I remember today. 18 Q. What kind of information is posted on the 19 20 21 22 23 park.org website? A. That was the website created for the Internet in the 1996 World Exposition. Q. What kind of information is posted on the town.hall.org website? 24 A. 25 radio. That is the archives of Internet talk Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 100 1 2 Q. What kind of information is posted at the my.phone.org website? 3 A. It's a single web page with the line, this 4 is the web page for my phone. 5 now. 6 7 8 9 Q. It's inactive right What kind of information is posted at the museum.media.org website? A. That is the archives of the Internet Multicasting Service. 10 Q. 11 there? 12 A. 13 And what kinds of archives are posted It's things like historical essays about the EDGAR database. 14 There's one more website I just remembered. 15 Mappa.mundi.net, M-a-p-p-a, dot m-u-n-d-i, dot net. 16 17 18 19 20 Q. What kind of information is posted at the mappa.mundi.net website? A. Mappa, m-a-p-p-a. Mappa.mundi.net was an early EZ, an electronic magazine on the Internet. Q. What kind of information is posted there? 21 MR. BRIDGES: Objection. 22 THE WITNESS: A series of columns I wrote 23 for the EZ, for example. 24 Lacks foundation. BY MR. HUDIS: 25 Q. On what topics? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 101 1 A. Mapping the Internet was one topic. 2 Q. Any others you can remember? 3 A. There is a tribute to my friend Jon Postel 4 when he passed away called the Internet prayer 5 wheel. 6 Q. For the record, who was Jon Postel? 7 A. Jon Postel was one of the early and 8 9 10 11 12 13 14 15 16 instrumental creators of the Internet. Q. Have you told me all of the websites that you can recall today operated by Public.Resource? A. I think we still have undesign.net is still active. Q. What -- what kind of information is posted at undesign.net? A. It was a tribute to Tibor Kalman and a discussion of -- 17 Q. Could you spell his name, please? 18 A. T-i-b-o-r, K-a-l-m-a-n. A tribute to Tibor 19 Kalman, and a discussion of the role of 20 advertising. 21 Q. Who is or was Tibor Kalman? 22 A. A famous designer. 23 Q. Of what? 24 A. You know, I don't know. 25 That was done in conjunction with Rebecca Malamud. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 102 1 Q. Earlier, Mr. Malamud, you said that 2 Internet ar -- excuse me, that Public.Resource 3 operates websites and provides services. 4 kinds of services does Internet -- excuse me, does 5 Public.Resource provide? 6 provision of the services? 7 A. What Or are the websites the "Service" is a technical term of art, and 8 it is the protocols that are used to access 9 information. 10 11 So a website is an example of a service. Q. What other services does Public.Resource 12 provide, other than the provision of these 13 websites? 14 A. The websites are accessible using the HTTP 15 service, and are also accessible using the FTP 16 service. 17 Q. FTP stands for file transfer protocol. Other than providing the websites, the HTTP 18 service and the FTP service, are there any other 19 services that Public.Resource provides? 20 A. We did provide information access using the 21 rsync protocol, r-s-y-n-c, and we terminated that 22 in January. 23 24 25 Q. Have you told me all of the services that Public.Resource provides? A. The only service we provide is access via Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 103 1 the Internet. 2 technical term of art denoting the protocols. And again, the word "service" is a 3 Q. Does Public.Resource sell any products? 4 A. No, we do not. 5 Q. Mr. Malamud, before the break we marked a 6 few exhibits. 7 please. 8 9 Exhibits 16, 17 and 18. 12 Let's take them one at a time. 10 11 I'd like you to look at them, What is Exhibit 16? A. It appears to be a copy of our articles of incorporation. 13 MR. HUDIS: Counsel, would you stipulate 14 that Exhibit 16 is an authentic business record of 15 Public.Resource? 16 MR. BRIDGES: I don't know. I think the 17 witness should -- I'm nervous about stipulating 18 when I don't have personal knowledge. 19 MR. HUDIS: 20 MR. BRIDGES: Okay. It looks to be a record of 21 the Secretary of State of the State of California, 22 given the file stamp. 23 24 25 MR. HUDIS: I'll ask the witness. BY MR. HUDIS: Q. Mr. Malamud, is Exhibit 16 an authentic Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 104 1 business record of Public.Resource? 2 3 MR. BRIDGES: calls for any kind of legal conclusion. 4 5 I'll object to the extent it You can testify as to whether you think it's an accurate reproduction of it. 6 THE WITNESS: This appears at first glance. 7 Obviously, I would want to go check my originals. 8 This appears at first glance to be a copy of our 9 articles of incorporation, yes. 10 11 BY MR. HUDIS: Q. And these articles of incorporation were 12 prepared about the time of the founding of 13 Public.Resource.Org, Inc.? 14 A. Well, yes. 15 Q. And is Exhibit 16, the articles of 16 incorporation, kept on your company's website? 17 A. Yes. 18 Q. And is that website operated in the regular 19 course of Public.Resource's business? 20 MR. BRIDGES: Objection. Lacks foundation; 21 may call for a legal conclusion; argumentative. 22 BY MR. HUDIS: 23 24 25 Q. You may answer. MR. BRIDGES: Vague and ambiguous. BY MR. HUDIS: Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 105 1 Q. You may answer. 2 A. Yes. 3 Q. And the articles of incorporation were made 4 5 6 7 8 at the time that you founded Public.Resource? A. The articles of incorporation are what created the corporation. Q. Let's look at Exhibit 17. What is this document? 9 MR. BRIDGES: Check it out. 10 THE WITNESS: This appears to be a copy of 11 our bylaws. 12 BY MR. HUDIS: 13 14 Q. Do you have any reason to doubt that Exhibit 17 is an authentic document? 15 MR. BRIDGES: 16 vague and ambiguous. 17 THE WITNESS: I do not. 18 MR. BRIDGES: Assumes facts not in 19 20 21 22 23 24 25 Objection. Lacks foundation; evidence. I will note that this document has lines without signatures on the final page. THE WITNESS: The version of our bylaws posted on our website has no signatures on it. I have no reason to doubt. I would obviously want to double-check this with the copy Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 106 1 that I have. 2 BY MR. HUDIS: 3 4 5 6 Q. I'll represent to you, Mr. Malamud, that I obtained Exhibits 16 and 17 from your website. A. Mm-hm. MR. HUDIS: Counsel, can you stipulate that 7 Exhibit 17 is an authentic business record of 8 Public.Resource? 9 MR. BRIDGES: Let me get back to you after 10 a break when I'll have to confer with my client. 11 anticipate that will not be a problem. 12 13 14 15 16 MR. HUDIS: I Because I'd rather not have to go through the foundation if I don't have to. MR. BRIDGES: I understand. I just want to confirm with him during a break. MR. HUDIS: Do you want to -- I'll allow 17 you to do that right now if you'd like. 18 off the record. 19 MR. BRIDGES: 20 MR. HUDIS: 21 22 23 24 25 We can go Sure. Andrew, do you want us to step out of the room? MR. BRIDGES: No. No. We need to go off the record though. THE VIDEOGRAPHER: The time is 11:58, and we are off the record. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 107 1 (Discussion off the record.) 2 THE VIDEOGRAPHER: 3 we are back on the record. 4 5 The time is 12:02, and MR. BRIDGES: So, Mr. Hudis, 18 we can stipulate to the authenticity. 6 17 we can stipulate this does appear to be 7 a copy of what is posted on the website, and we 8 believe this is a genuine copy of the article of 9 incorporation -- of the form of the articles of 10 incorporation without the signatures. 11 12 So I think -- you know, if -- the problem is -- 13 THE WITNESS: Bylaws. 14 MR. BRIDGES: The bylaws, thank you. 15 The concern is if -- it's a long document 16 and needs to be compared. 17 with that, we can get back and let you know that. If there is an issue 18 So the stipulation is sort of a conditional 19 stipulation, subject to a correction at the time of 20 the transcript if we find after comparing it, there 21 is a material variance. 22 MR. HUDIS: Okay. So, Counsel, unless 23 there is a material variance, we can stipulate that 24 Exhibits 16 and 17 are authentic business records 25 of Public.Resource? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 108 1 MR. BRIDGES: Yes, subject to our right to 2 correct the deposition to the extent we may need to 3 correct that stipulation if there is a material 4 variance on 17. 5 MR. HUDIS: 6 And Exhibit 18, you are stipulating that 7 Understood and agreed. that's an authentic document. 8 MR. BRIDGES: 9 MR. HUDIS: 10 Yes. Can we stipulate that it's a business record of Public.Resource? 11 MR. BRIDGES: We'll stipulate that it is a 12 document in the possession of Public.Resource. 13 would consider it to be a business record, I would 14 think, of the Internal Revenue service. 15 16 17 18 MR. HUDIS: I Satisfied. BY MR. HUDIS: Q. Turning, Mr. Malamud, to Exhibit 16. Does paragraph II B of the articles of 19 incorporation accurately describe the purpose of 20 Public.Resource? 21 MR. BRIDGES: Objection. Lacks foundation; 22 vague and ambiguous and may call for legal 23 expertise and legal conclusion. 24 25 THE WITNESS: Yes. BY MR. HUDIS: Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 109 1 Q. Turning to Exhibit 17. Does section 2.1 of 2 the bylaws of Public.Resource accurately describe 3 the objectives and purposes of Public.Resource? 4 MR. BRIDGES: Same objections. 5 THE WITNESS: Yes. 6 7 BY MR. HUDIS: Q. Mr. Malamud, I show you what's been marked 8 as Exhibit 18. 9 document is? 10 Could you please tell me what that MR. BRIDGES: I'll object to the extent it 11 requires him to -- object to the extent it requires 12 legal expertise to characterize it or seeks a legal 13 conclusion. 14 15 The witness may testify as to what he knows. 16 THE WITNESS: 17 title of this. 18 Form 1045. 19 status. 20 I don't know the official BY MR. HUDIS: 21 Q. It's a -- I believe it's called a It's a notification of nonprofit And does it indicate to you that 22 Public.Resource attained its nonprofit status in 23 September of 2007? 24 25 MR. BRIDGES: Objection. Vague and ambiguous; may call for a -- may call for legal Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 110 1 expertise or conclusion. 2 BY MR. HUDIS: 3 Q. Should I repeat the question, Mr. Malamud? 4 A. Yeah. 5 Q. Does Exhibit 18 indicate to you that 6 Public.Resource attained its nonprofit status in 7 September of 2007? 8 MR. BRIDGES: Same objections. 9 THE WITNESS: The date of the letter is 10 September 25th. 11 nonprofit status. 12 BY MR. HUDIS: That's not the date of the 13 Q. What is the date of the nonprofit status? 14 A. April 13th, 2007. 15 Q. Fair enough. 16 A. Yeah. 17 Q. Thank you very much. 18 19 20 21 And I see that date. (PLAINTIFFS' EXHIBITS 19-20 WERE MARKED.) BY MR. HUDIS: Q. Mr. Malamud, please take a moment to look at Exhibits 19 and 20. 22 A. Okay. 23 Q. Have you looked at the exhibits? 24 A. Yes, I have. 25 Q. Could you tell me what Exhibit 19 is? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 111 1 2 3 A. It looks like an out of date copy of the Public.Resource.Org home page. Q. So since the time that my office printed 4 this web page of Exhibit 19, you have updated the 5 content since then? 6 7 MR. BRIDGES: Misstates testimony; vague and ambiguous. 8 9 Objection. THE WITNESS: When did you print this? BY MR. HUDIS: 10 Q. Our best recollection is January of 2015. 11 A. I don't know. 12 13 I would have to double-check. Q. I amend that because Exhibit 20 was also 14 printed on the same date. 15 it in March of 2014. So we probably printed 16 A. Yeah. 17 Q. So this -- so Exhibit 19 and 20 appears to That makes sense. 18 you to be the content of the home page and the 19 about page of the Public.Resource.Org website in or 20 about March of 2014? 21 MR. BRIDGES: Objection. May call for 22 speculation if he doesn't have definite memory; 23 vague and ambiguous; compound; lacks foundation. 24 25 THE WITNESS: I'd have to speculate. It has the look and feel of what those pages typically Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 112 1 look like, but I don't know at specific points in 2 time. 3 BY MR. HUDIS: 4 Q. Now, Exhibit 19, in the center are these 5 some of the websites that Public.Resource provides 6 to the public? 7 8 A. Yes. And there's one more website that I forgot to tell you about on there. 9 Q. Which one? 10 A. Bulk -- 11 MR. BRIDGES: I'm sorry. 12 THE WITNESS: Pardon me. 13 MR. BRIDGES: I object on the grounds it 14 lacks foundation; very confusing to me. 15 16 What are you directing his attention to in this exhibit? 17 MR. HUDIS: Sure. Counsel, do you see 18 where it says "Watch FedFlix" in the center of the 19 page on Exhibit 19? 20 MR. BRIDGES: 21 MR. HUDIS: 22 25 And there are a number of websites listed below that? 23 24 Right. MR. BRIDGES: Okay. I just wanted to be clear. MR. HUDIS: Yes. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 113 1 2 MR. BRIDGES: referring to, fine. 3 4 If that's what you're MR. HUDIS: Yes. BY MR. HUDIS: 5 Q. So continue, Mr. Malamud. 6 A. Bulk.resource.org is the website that I 7 8 9 10 forgot to tell you about. Q. So what kind of information is provided on the Bulk.resource.org website? A. Its primary function is the home for 11 approximately 8 million IRS-exempt organization 12 filings. 13 14 15 Q. And when you say "exempt," do you mean tax exempt? A. Exempt organizations is a category that the 16 IRS has assigned. 17 it also includes political organizations. 18 19 Q. So if I remember my Internal Revenue Code, those are 501(c)(3) and 501(c)(4) organizations? 20 21 Many of them are tax exempt, but MR. BRIDGES: Objection. May call for legal expertise or conclusion. 22 THE WITNESS: 23 organizations. 24 Also section 527 BY MR. HUDIS: 25 Q. So all three? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 114 1 A. Yes. 2 Q. Do you have -- if you could please look at 3 Exhibit 20. Do you see that? 4 A. Yes. 5 Q. Are the current trustees of Public.Resource 6 Tim Stanley, Ed Walters and yourself? 7 A. Yes. 8 Q. Who is Tim Stanley? 9 A. Tim Stanley is the CEO of Justia. 10 Q. And what is Justia? 11 A. It is a company in the legal information 12 13 services industry. Q. 14 15 What kind of service do they provide? MR. BRIDGES: Objection. Vague and ambiguous. 16 THE WITNESS: 17 for lawyers. 18 One example is a directory BY MR. HUDIS: 19 20 21 22 23 Q. Any other services that Justia provides that you're aware of? MR. BRIDGES: Objection. Vague and ambiguous. THE WITNESS: They provide a large number 24 of files such as court opinions for public access. 25 BY MR. HUDIS: Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 115 1 Q. And who is Ed Walters? 2 A. Mr. Walters is the CEO of FastCase, all one 3 word. 4 Q. And what is the business of FastCase? 5 A. FastCase is a company in the legal 6 information services industry. 7 Q. What kind of information do they provide? 8 A. They provide access to court opinions, 9 statutes, and other information. 10 Q. What kinds of other information? 11 A. You know, I don't know. 12 13 Court opinions and statutes. Q. Do the former trustees of Public.Resource 14 also include Dale Dougherty, Marshall Rose and Hal 15 Varian? 16 A. Yes. 17 Q. Who is Dale Dougherty? 18 A. Dale Dougherty is the founder of Maker 19 Media. 20 Q. What is Maker Media? 21 A. It's a company that, among other things, 22 operates the Maker Faire. 23 dash F-a-i-r-e. That's all one word, 24 Q. What is Maker Faire? 25 A. It is a set of events around the world Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 116 1 devoted to the maker movement. 2 Q. What is the maker movement? 3 A. People that like to make things. 4 Q. Inventors? 5 A. For example, inventors. 6 Q. Who is Marshall Rose? 7 A. Dr. Rose is an Internet engineer. 8 Q. Who is Hal Varian? 9 A. Dr. Varian is the chief economist of 10 11 12 Google. Q. How long did Mr. Dougherty serve on Public.Resource's board? 13 A. Six years. 14 Q. What years? 15 A. 2007 to 2013. 16 Q. Why did he leave Public.Resource's board? 17 18 MR. BRIDGES: Objection. May call for speculation; vague and ambiguous. 19 THE WITNESS: He put in his time, and I 20 thanked him very much. 21 BY MR. HUDIS: 22 Q. So he voluntarily left? 23 A. Absolutely. 24 Q. And Dr. Rose, how long was he on 25 Public.Resource's board? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 117 1 2 3 A. June. Q. 4 5 The same period of time, 2007 to 2013, Why did he leave Public.Resource's board? MR. BRIDGES: Objection. May call for speculation; vague and ambiguous. 6 THE WITNESS: Dr. Rose created a new 7 Internet startup, and I was assisting him in that, 8 and we decided at the time that that would not have 9 him be an outside director. And so again, I 10 thanked him for his valuable service. 11 BY MR. HUDIS: 12 13 Q. And Hal Varian, when did he -- how long did he serve on Public.Resource's board? 14 A. The same period of time. 15 Q. Why did he leave the board? 16 MR. BRIDGES: Object. 17 THE WITNESS: He was an investor -- I'm 19 MR. BRIDGES: The same objections. 20 THE WITNESS: Okay. 21 MR. BRIDGES: May call for speculation and 22 vague and ambiguous. 23 BY MR. HUDIS: 18 24 25 sorry. Q. Mr. Malamud, between you and myself, we're having a nice conversation. You have to give Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 118 1 Mr. Bridges time to object. 2 A. Thank you. 3 Q. All right. 4 We were in the middle of your answer. 5 6 So I'm sorry. Why did Mr. Varian leave Public.Resource's board? 7 MR. BRIDGES: Same objection. 8 THE WITNESS: Dr. Varian was an investor in 9 10 11 Dr. Rose's company. BY MR. HUDIS: Q. So that, is it true to say that they -- 12 Dr. Varian and Dr. Rose needed time to operate 13 their startup company? 14 15 MR. BRIDGES: No. Objection. Misstates testimony. 16 THE WITNESS: Public.Resource.Org requires 17 that the majority of the board of directors are not 18 interested parties, and because I had a business 19 relationship with Dr. Rose, that would have made 20 him an interested party. 21 BY MR. HUDIS: 22 Q. And Dr. Varian as well? 23 A. Because he was an investor in Dr. Rose's 24 25 company, yes. Q. If we could turn back -- Mr. Malamud, if we Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 119 1 could turn back to the bylaws, Exhibit 17. 2 section 3.3 accurately describe the functions of 3 the Public.Resource trustees? 4 MR. BRIDGES: Objection. Does May call for a 5 legal conclusion and lacks foundation and vague and 6 ambiguous. 7 THE WITNESS: Yes. It's the specification 8 of the duties of the trustees. 9 BY MR. HUDIS: 10 Q. What other duties, if any, besides those 11 listed in section 3.3 of Exhibit 17, do the 12 trustees perform for Public.Resource? 13 14 MR. BRIDGES: Objection. Lacks foundation; vague and ambiguous; confusing; argumentative. 15 THE WITNESS: These are the duties. It 16 says, "Supervise all officers, agents and employees 17 of the corporation." 18 BY MR. HUDIS: 19 Q. So besides what are listed here in section 20 3.3, do the trustees of Public.Resource perform any 21 other duties for the company? 22 MR. BRIDGES: Same objections. Lack of 23 foundation; vague and ambiguous; confusing; 24 argumentative. 25 THE WITNESS: I believe clause C, Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 120 1 "supervise all officers," is pretty inclusive, and 2 I think that covers their duties. 3 BY MR. HUDIS: 4 5 Q. Does section 4.4 of the bylaws, Exhibit 17, accurately describe the president's duties? 6 MR. BRIDGES: Objection. May call for a 7 legal conclusion; vague and ambiguous; 8 argumentative; lacks foundation. 9 10 11 THE WITNESS: Yes. BY MR. HUDIS: Q. Mr. Malamud, do you perform any other 12 duties on behalf of Public.Resource as its 13 president, other than those that are stated in 14 section 4.6 of Exhibit 17? 15 MR. BRIDGES: Objection. Argumentative; 16 lacks foundation; vague and ambiguous; may call for 17 a legal conclusion and construction of the 18 document. 19 THE WITNESS: Section 4.6 says, "He or she 20 shall perform all duties incident to his or her 21 office." 22 BY MR. HUDIS: 23 Q. I think that's pretty inclusive. Mr. Malamud, section 4.1 of Exhibit 17, the 24 bylaws, provides for the following officers. 25 president, a secretary and a chief financial Alderson Reporting Company 1-800-FOR-DEPO "A Carl Malamud May 12, 2015 San Francisco, CA Page 121 1 officer who shall be designated the treasurer." 2 3 Today who is the secretary of Public.Resource? 4 A. That would be me. 5 Q. Today who is the chief financial 6 officer/treasurer of Public.Resource? 7 A. That is me. 8 Q. Mr. Malamud, if you could turn to section 9 5.1 of the bylaws, Exhibit 17. 10 11 And 5.2. Are there today operating committees of Public.Resource? 12 MR. BRIDGES: 13 ambiguous; lacks foundation. 14 THE WITNESS: Objection. Vague and We have a small board. 15 operate as a committee of the whole. 16 do. 17 We BY MR. HUDIS: 18 19 Q. So yes, we Other than the board, does Public.Resource have any other committees? 20 MR. BRIDGES: Objection. Argumentative; 21 lacks foundation; vague and ambiguous; asked and 22 answered. 23 THE WITNESS: Yes. Again, the audit 24 committee, for example, is a committee of the whole 25 board. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 122 1 2 BY MR. HUDIS: Q. Okay. Other than the committee of the 3 whole, which is the board and the audit committee, 4 does Public.Resource -- Public.Resource have any 5 other operating committees? 6 7 MR. BRIDGES: 10 11 Asked and answered; lacks foundation; vague and ambiguous. 8 9 Objection. THE WITNESS: No. BY MR. HUDIS: Q. Mr. Malamud, could you turn to article 13 of the bylaws, Exhibit 17? Are you there? 12 A. Yes. 13 Q. How many members does Public.Resource have 14 in the Council of Public Engineers? 15 A. None. 16 Q. What is the Council of Public Engineers? 17 A. The bylaws were created in a fashion that 18 allowed us to become a membership organization in 19 the future. 20 21 Q. We have not activated that. Besides yourself, does Public.Resource have any employees? 22 A. No. 23 Q. Who is or was Joel Hardi, H-a-r-d-i? 24 A. He was an employee. 25 Q. What did he do? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 123 1 A. He was a systems engineer. 2 Q. For how long was he a systems engineer at 3 Public.Resource? 4 A. It was less than a year. 5 Q. Do you remember what year? 6 A. 2008. 7 MR. HUDIS: 8 MR. BRIDGES: 9 MR. HUDIS: 10 Shall we break for lunch? Yeah. That's why I want to -- we're at a good breaking point. 11 12 Let's go off the record. THE VIDEOGRAPHER: The time is 12:26. We are off the record. 13 (Lunch recess taken.) 14 THE VIDEOGRAPHER: 15 are back on the record. 16 The time is 1:11, and we BY MR. HUDIS: 17 Q. Mr. Malamud, before we had the break you 18 were telling me about Joel Hardi, and he was a 19 systems engineer for Public.Resource in 2008? 20 A. That's correct. 21 Q. What did he do as systems engineer for the 22 23 24 25 year he was with you? A. He did systems administration and programming. Q. Mr. Malamud, how does Public.Resource Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 124 1 obtain funding for its operations? 2 MR. BECKER: 3 Objection. 4 Objection. Relevance. 30(b)(6) designation. 5 6 This is beyond the scope of the THE WITNESS: We receive contributions and grants. 7 And I wanted to add there was one more 8 website that I remembered. 9 time, I'd be happy to tell you what it is. 10 11 12 When an appropriate BY MR. HUDIS: Q. You know what, Mr. Malamud? Why don't we do that right now? 13 A. All right. 14 Q. So there is another website that is 15 provided by Public.Resource? 16 A. Yes. 17 Q. And what is the name of that website? 18 A. Betterdogfood.org. 19 Q. And what information is provided on the 20 21 Betterdogfood.org website? A. It's a spoof of Silicon Valley. 22 fake dot com. 23 It's a dog food. 24 25 Q. We give you the dog and sell you the So Public.Resource obtains funding for its operations by contributions and grants? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 125 1 MR. BECKER: Objection. Again, beyond the 2 scope of Mr. Malamud's 30(b)(6) designation. 3 misstate prior testimony. 4 5 THE WITNESS: MR. HUDIS: 10 (PLAINTIFFS' EXHIBIT 21 WAS MARKED.) BY MR. HUDIS: Q. If we notice on item 2 on -- 11 12 13 14 15 It's deposition topic 4, and if I could put something into the record. 8 9 We receive contributions and grants. 6 7 May MR. BECKER: Counsel, what exhibit number is this? MR. HUDIS: Yeah, 21. So I've marked as Exhibit 21 -- thank you, Counsel. We have marked as Exhibit 21 16 Public.Resource's initial disclosures pursuant to 17 FRCP 26(a)(1), and under the items relating to the 18 documents that Public.Resource may use to support 19 its claims of defense, among them it says documents 20 relating to Public.Resource's income and finances. 21 So we believe that Public.Resource has put 22 its income and finances into -- into relevant play 23 in the litigation, and we did notice it as a topic. 24 25 MR. BECKER: And we have had a discussion about this, and of course, Public.Resource Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 126 1 disagrees with your characterization. 2 This says documents that Public.Resource 3 may use to support its claims for defenses. 4 such documents that Public.Resource plans to use to 5 support its claims for defenses have been produced 6 to plaintiffs, and the -- I should also note that 7 category 4 is far broader than simply documents 8 relating to Public.Resource's income and finances. 9 Its records and communications and information 10 Any relating to Public.Resource's income and finances. 11 MR. HUDIS: So I'll ask the questions, 12 Counsel. 13 take Mr. Malamud's testimony subject to your 14 objections, or you're within your rights to tell 15 him not to answer. 16 17 18 19 If you have objections, we can either MR. BECKER: I just want to make my record. Mm-hm. BY MR. HUDIS: Q. Does Public.Resource sell any products? MR. BECKER: I'm just going to take a 20 moment to say that we have a standing objection to 21 all questions that are related to the records, 22 communications and information relating to 23 Public.Resource's income and finances as being 24 beyond the scope of the 30(b)(6) designation. 25 MR. HUDIS: Okay. So, Counsel -- Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 127 1 MR. BECKER: And also being irrelevant. 2 MR. HUDIS: So, Counsel, we do disagree. 3 So I'll just make the record and ask my questions 4 and we can proceed from there. 5 BY MR. HUDIS: 6 7 Q. Public.Resource sell any products? 8 9 So, Mr. Malamud, does product -- does MR. BECKER: Objection. Vague and ambiguous and all prior objections. 10 THE WITNESS: Some of our pamphlets are 11 available for purchase on Lulu, but nobody's ever 12 bought them. 13 BY MR. HUDIS: 14 Q. 15 16 MR. BECKER: 19 Same objections. Vague and ambiguous. 17 18 Does Public.Resource sell any services? THE WITNESS: No. BY MR. HUDIS: Q. Now, you mentioned before that 20 Public.Resource obtains grants. 21 that? Do you recall 22 A. Yes. 23 Q. From let's say the five largest. From whom 24 does Public.Resource obtain grants from the five 25 largest that you can remember? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 128 1 MR. BECKER: Objection. For the same 2 objections prior. 3 objection on privacy grounds for any individuals or 4 entities that are not publicly listed among their 5 list of provided grants to Public.Resource.Org. 6 Vague and ambiguous, and also an THE WITNESS: Our list of contributors is 7 confidential. 8 Form 990 we have listed some of our contributors on 9 our "About" page. 10 11 12 As part of the schedule B of our BY MR. HUDIS: Q. So if we could look at Exhibit 20, Mr. Malamud. 13 A. Okay. 14 Q. And you see under "Our Contributors"? 15 A. Yes. 16 Q. So are -- strike that. 17 Under the first bullet point where it says, 18 "Pro bono legal support for our 2013 activities." 19 Do you see that? 20 A. I do. 21 Q. And the pro bono legal support provided, 22 these are all law firms? 23 A. No. 24 Q. Which one -- which one of these entities is 25 not a law firm? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 129 1 A. Christopher Sprigman is a professor of law. 2 Q. Except for Christopher Sprigman, all the 3 rest of the pro bono legal supporters in 2013 are 4 these law firms listed in here? 5 MR. BECKER: 6 What do you mean by law firm? 7 MR. HUDIS: 8 Vague. It says, "the following law firms." 9 Objection. BY MR. HUDIS: 10 Q. You may answer. 11 A. Yes. 12 Q. Are there any other law firms that have 13 provided pro bono legal support to Public.Resource 14 that are not listed here on Exhibit 20? 15 MR. BECKER: Objection to the extent that 16 this calls for anything that is attorney-client 17 privilege, including the -- the type of legal 18 support that any entity may or may not have 19 provided to Public.Resource.Org. 20 BY MR. HUDIS: 21 Q. You may answer. 22 A. We have disclosed it. 23 Morrison & Foerster represents us on a pro bono basis. 24 Q. Any other law firms? 25 A. Not that we have disclosed. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 130 1 Q. And then on the next bullet it says, "Major 2 support for our 2012 activities is provided by a 3 grant from Google.Org with additional support from 4 the Elbaz Family Foundation and the Cutts 5 Foundation. 6 Do you see that? 7 MR. BECKER: 8 11 The document speaks for itself. 9 10 Objection. THE WITNESS: I do. BY MR. HUDIS: Q. All right. And could you tell me the 12 amounts of the grants of these three entities in 13 2012? 14 MR. BECKER: Objection. Once again, 15 renewing the objection that this is beyond the 16 scope of the 30(b)(6) designation. 17 Competence to the extent that the witness is in a 18 position to state specific figures. 19 relevance. 20 BY MR. HUDIS: Objection. Objection for 21 Q. You may answer. 22 A. Google.Org was a million dollar grant in 23 2012. 24 The Cutts Foundation was $10,000. 25 And I forget how much the Elbaz Family Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 131 1 2 Foundation was. Q. Has Public.Resource obtained grants from 3 any other entities larger than a hundred thousand 4 dollars? 5 MR. BECKER: Objection. Vague and 6 ambiguous. 7 privileged information concerning the identities of 8 donors, and their first amended rights in 9 association and rights of free speech. Objection. 10 Objection. 11 THE WITNESS: The -- may call for Relevance. I'm willing to answer that 12 question with respect to the publicly disclosed 13 donors. 14 have not been publicly disclosed. 15 As I explained before some of our donors And would you repeat the question? 16 sure I get it right. 17 Make BY MR. HUDIS: 18 Q. Sure. Has Public.Resource obtained grants 19 from any other entity at this time larger than a 20 hundred thousand dollars? 21 22 23 MR. BECKER: All the same objections, including vague and ambiguous. THE WITNESS: There are two individual 24 grants that are greater than that sum. 25 Foundation provided a grant of $200,000. Alderson Reporting Company 1-800-FOR-DEPO The Arcadia Carl Malamud May 12, 2015 San Francisco, CA Page 132 1 The Omidyar Network provided a grant of 2 $500,000 plus $750,000 in a matching funds 3 challenge. 4 Let me add -- greater than a hundred 5 thousand dollars. 6 BY MR. HUDIS: I believe that's the list. 7 Q. Could you spell Arcadia for me? 8 A. A-r-c-a-d-i-a. 9 Q. And could you spell Omidyar? 10 A. O-m-i-d-y-a-r. 11 Q. And is Arcadia a foundation? 12 A. I believe that's their formal name. 13 Q. And is Omidyar Network a foundation? 14 A. Yes, it is. 15 Q. Have you provided to us all of the publicly 16 disclosed entities who have donated to 17 Public.Resource in amounts greater than a hundred 18 thousand dollars? 19 MR. BECKER: Objection. Vague and 20 ambiguous. 21 Beyond the scope of the 30(b)(6) designation. 22 Objection. 23 Objection. Relevance. Objection. Competence. THE WITNESS: It's -- we've disclosed all 24 of those on our about page, and you can simply 25 refresh this document and you'll have the list. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 133 1 2 BY MR. HUDIS: Q. 3 4 MR. BECKER: Objection. Vague and ambiguous. 5 6 What is the Project 10 award? THE WITNESS: The project 10 to 100. BY MR. HUDIS: 7 Q. Oh, Project 10 to 100 award? 8 A. Is a set of grants that Google gave out in 9 celebration of their tenth anniversary. 10 Q. And what is the Mitchell Kapor Foundation? 11 A. It is a private foundation run by Mitchell 12 Kapor. 13 Q. What is the Sunlight Foundation? 14 A. The Sunlight Foundation is a nonprofit 15 organization based in Washington D.C. 16 Q. What is Creative Commons? 17 A. Creative Commons is a nonprofit 18 organization based in San Francisco, which is the 19 creator of the Creative Commons licenses. 20 21 22 23 Q. What are the creative commons licenses? MR. BECKER: Objection. Vague and ambiguous; relevance. THE WITNESS: I'm not a lawyer so I'm not 24 sure the proper characterization, but it is a set 25 of licenses that people can apply to content that Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 134 1 permit other people to use that content under 2 certain conditions. 3 BY MR. HUDIS: 4 5 Q. Understanding you're not a lawyer, what are those conditions? 6 MR. BECKER: Objection. May call for a 7 legal conclusion; vague and ambiguous. 8 for relevance. 9 the 30(b)(6) designation. 10 Objection Objection for beyond the scope of Objection for competence. 11 THE WITNESS: One example of the creative 12 commons license is attribution non-commercial use. 13 And what that says is you may use this content as 14 long as you provide attribution and only use it for 15 non-commercial purposes. 16 BY MR. HUDIS: 17 Q. Does Public.Resource obtain funding for its 18 operations from sources other than contributions or 19 grants? 20 MR. BECKER: Objection for being beyond the 21 scope of the 30(b)(6,) and objection for relevance. 22 Objection to the extent that it calls for 23 information concerning the identities of any 24 private donors that have not been publicly 25 disclosed and therefore would impact their privacy Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 135 1 rights. 2 THE WITNESS: We had a small in-kind 3 contribution of a computer. 4 BY MR. HUDIS: 5 Q. And that would be it. So other than the donation of the in-kind 6 computer and contributions and grants, does 7 Public.Resource have any other sources of funding 8 for its operations? 9 MR. BECKER: 10 THE WITNESS: 11 MR. BECKER: 12 THE WITNESS: 13 14 15 Q. 20 21 22 23 Vague and ambiguous. Contributions and grants. Does Public.Resource retain any independent contractors? MR. BECKER: Objection. Vague and ambiguous. 18 19 No. BY MR. HUDIS: 16 17 All the same objections. THE WITNESS: Yes. BY MR. HUDIS: Q. For what purpose? MR. BECKER: Objection. Vague and ambiguous. THE WITNESS: We -- one independent 24 contractor is Point.B Studio, which does graphic 25 design support. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 136 1 2 3 BY MR. HUDIS: Q. is operated by Rebecca Malamud? 4 5 And that's -- that business Point.B Studio MR. BECKER: Objection. Assumes facts not in evidence; vague and ambiguous. 6 THE WITNESS: 7 Point.B Studio, yes. 8 BY MR. HUDIS: 9 Q. She's the principal of Who is or was Mike Kail, K-a-i-l? 10 MR. BECKER: 11 THE WITNESS: Objection. Vague; compound. Mike D. Kail provides system 12 administration support to Public.Resource on a 13 part-time basis. 14 BY MR. HUDIS: 15 Q. What is systems administration support? 16 A. That is the maintenance and operation of 17 UNIX-based computers that we use as servers. 18 is all capital letters. 19 Q. Who -- who or what is HTC Global? 20 A. A former contractor. 21 Q. What services did they provide to 22 Public.Resource? 23 MR. BECKER: 24 THE WITNESS: 25 Objection. Vague. Double-key services. BY MR. HUDIS: Alderson Reporting Company 1-800-FOR-DEPO UNIX Carl Malamud May 12, 2015 San Francisco, CA Page 137 1 Q. Does Public.Resource retain any independent 2 contractors today who provide double-key services 3 to your company? 4 5 MR. BECKER: Objection. 6 7 8 9 Objection. Irrelevance. Vague. THE WITNESS: No. BY MR. HUDIS: Q. Mr. Malamud, could we turn back to the bylaws of Public.Resource, Exhibit 17? 10 A. Okay. 11 Q. Could we turn to section 7.6? 12 13 Since 2007 has Public.Resource issued any annual reports? 14 A. Yes. 15 Q. Are these reports published on 16 Public.Resource's website? 17 A. I don't know. 18 Q. Since 2007 -- now I'm -- strike that. 19 So now we're on -- I'm looking at section 20 7.7 of Exhibit 17, the bylaws of Public.Resource. 21 Since 2007 has Public.Resource issued any 22 23 annual statements of specific transactions? A. I think you left out a part of section 7.7. 24 It's annual statement of specific transactions to 25 members. We have no members. We have not issued Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 138 1 2 3 any statements. Q. I appreciate it. 4 5 Turning to section 9.4 of Exhibit 17, the bylaws. 6 7 8 9 10 11 12 Thank you for the correction, Mr. Malamud. Since 2007 has Public.Resource kept board meetings -- kept board meeting minutes? A. We conduct all of our board business by electronic mail. And yes, in fact, that's part of our document retention. Q. Are those meeting minutes published on Public.Resource's website? 13 A. No. 14 Q. Since 2007 has Public.Resource kept board 15 16 17 committee meeting minutes? A. As I said earlier, we function as a committee of the whole, and yes, we did. 18 Q. Where are these reports and minutes kept? 19 A. They're -- 20 MR. BECKER: 21 THE WITNESS: Objection. Relevance. They're in electronic mail, 22 and they were also furnished to our auditors and 23 our accountant. 24 25 MR. HUDIS: Counsel, we would like production of Public.Resource's annual reports and Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 139 1 board minutes from 2007 until now. 2 MR. BECKER: Counsel, what is the basis for 3 that request? 4 written document requests would include those 5 documents? 6 7 MR. HUDIS: 10 11 I'd have to look, and if they don't, we'll certainly propound more. 8 9 Do you believe that any of your MR. BECKER: And, Counsel, what is the relevance of those documents that you're requesting to -MR. HUDIS: Oh, any of the reports or 12 meeting minutes that would discuss either the 13 posting of the 1999 standards or this litigation. 14 15 16 17 18 MR. BECKER: Counsel, what is the basis for requesting them back to 2007? MR. HUDIS: Good point. We'll amend our request back to 2012. MR. BECKER: Counsel, what is the basis for 19 requesting all -- all minutes as opposed to simply 20 any that would mention the 1999 standards and this 21 litigation? 22 MR. HUDIS: I agree. I agree. We'll limit 23 our request to any board minutes and any annual 24 reports of Public.Resource that mention either the 25 1999 standards or this litigation from 2012 to the Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 140 1 present. 2 MR. BECKER: We will take this under 3 advisement and reserve objections. 4 BY MR. HUDIS: 5 Q. Mr. Malamud, what is the Internet Archive? 6 MR. BECKER: 7 THE WITNESS: Objection. Vague. It's a nonprofit corporation 8 based in San Francisco. 9 BY MR. HUDIS: 10 Q. 11 What is the business of Internet Archive? 12 MR. BECKER: Objection. Vague and competence. 13 THE WITNESS: 14 was, what -- 15 And I'm sorry, your question BY MR. HUDIS: 16 Q. What is the business of Internet Archive? 17 A. So that is probably a question best asked 18 of them. 19 it is a public library on the Internet. 20 21 Q. If I were to characterize it, I would say And are you familiar with the URL of Public.Resource's website? 22 MR. BECKER: 23 THE WITNESS: 24 Vague. I'm not sure what you're asking there. 25 Objection. BY MR. HUDIS: Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 141 1 2 Q. Is www.archive.org the URL of Public.Resource's website? 3 MR. BECKER: 4 THE WITNESS: 5 6 Confusing. No, it is not. BY MR. HUDIS: Q. Oh, thank you. 7 8 Objection. I misspoke. What is the URL of Internet Archive's website? 9 A. Archive.org. 10 Q. What relationship, if any, do you have with 11 the Internet Archive? 12 MR. BECKER: I'd just like to note my -- 13 our objection that Mr. Malamud is not designated to 14 discuss generally any interaction between the 15 Internet Archive and Public.Resource.Org. 16 Mr. Malamud is only designated to discuss those 17 interactions that may relate to the 1999 standards. 18 MR. HUDIS: Well, we -- he -- Mr. Malamud 19 is appearing here not only in his Rule 30(b)(6) 20 capacity, but he is also appearing here in his 21 personal capacity. 22 23 24 25 So I will ask again. BY MR. HUDIS: Q. Mr. Malamud, what relationship, if any, do you have with Internet Archive? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 142 1 MR. BECKER: 2 vague. 3 And same objection, as well as BY MR. HUDIS: 4 Q. You may answer. 5 A. I'm a user. 6 Q. Mr. Malamud, are you a registered user with 7 Internet Archive? 8 MR. BECKER: 9 THE WITNESS: 10 11 12 Vague. Yes, I am. BY MR. HUDIS: Q. What rights does an Internet Archive registered user have? 13 14 Objection. MR. BECKER: Objection. Assumes facts not in evidence. 15 THE WITNESS: So again, the specific nature 16 of the rights is something you would have to ask 17 the Internet Archive, but a user can read content 18 and can create what is known as an item. 19 BY MR. HUDIS: 20 21 Q. What -- in relation to the Internet Archive, what is an item? 22 A. An example of an item is a piece of video. 23 Q. Could the creation of an item be also 24 25 written content? MR. BECKER: Objection. Competence. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 143 1 Objection. 2 Vague. THE WITNESS: Items have types, and one 3 type of an item is a text item. 4 BY MR. HUDIS: 5 6 Q. Are there other types of items that one can create on Internet Archive? 7 A. Yes. 8 Q. And what are they? 9 A. Audio. What I would call an opaque item, 10 just an arbitrary file, such as a zip file. 11 is actually the formal type name for that. 12 Q. Data So generally these items could include 13 video, text, audio and opaque data, such as a zip 14 file? 15 16 MR. BECKER: Objection. 17 Objection. Compound. Vague. THE WITNESS: I'm not sure that's the 18 complete list, but that is certainly a subset of 19 the items one can create. 20 BY MR. HUDIS: 21 22 23 24 25 Q. Do you have administrator privileges with Internet Archive? MR. BECKER: Objection. Vague. Objection. Competence. THE WITNESS: Yes, although that's a Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 144 1 carefully defined term. 2 BY MR. HUDIS: 3 4 5 Q. And how would you define "administrator privileges"? A. It allows me to create and edit items 6 within the collections that I have created or have 7 access to. 8 Q. You anticipated one of my later questions. 9 A. Sorry about that. 10 Q. No, that's -- that's actually very good. 11 12 13 14 15 With respect to the Internet Archive, what is a collection? A. A collection is a set of items that are grouped together. Q. Are these sets of items grouped together in 16 a collection under a theme? 17 MR. BECKER: 18 THE WITNESS: 19 Objection. Vague. Typically. BY MR. HUDIS: 20 Q. Mr. Malamud, do you have an e-mail address? 21 A. Yes, I do. 22 Q. And is that e-mail address Carl@media.org? 23 A. Yes. 24 Q. Is your e-mail address also the user name 25 that you use to log on to Internet Archive's Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 145 1 servers so that you can post content to their 2 website? 3 A. Yes. 4 Q. For questions that are going to follow 5 later, Mr. Malamud, I'd like to know your 6 understanding of certain terms related to the 7 Internet. 8 9 First, content. What is content in relation to the Internet? 10 MR. BECKER: 11 ambiguous. 12 Objection. Vague and argumentative. 13 Objection. THE WITNESS: Relevance. May be That's a broad philosophical 14 question, sir. 15 something one would write an essay about. 16 BY MR. HUDIS: 17 18 Q. I mean, that sounds like the -- All right. So we'll -- we'll take the definition by way of example. 19 Can content include textual data? 20 A. Sure, yes. 21 Q. Can content include graphical data such as 22 image -- images? 23 A. Images would be content, yes. 24 Q. Yes. 25 A. Maybe or maybe not. And would data files be content? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 146 1 2 3 Q. In what way would data files be considered content for the Internet? A. So content in my mind, and again, this is a 4 broad, philosophical topic, implies something that 5 a human being can look at and take some meaning 6 from. 7 So a data file might include a binary 8 image. 9 it would be a fascinating essay. 10 Q. 11 12 Is that content or not? Again, that's -- Which brings me to my next question. What does it mean to view content on an Internet website? 13 MR. BECKER: 14 THE WITNESS: Objection. Vague. So view to me sounds to me 15 like a human being at a computer using the 16 Internet. 17 at an item that is available from another computer. 18 BY MR. HUDIS: 19 20 21 Q. So I think that is an end user looking What does it mean to access content on an Internet website? MR. BECKER: Objection. 22 May also be argumentative. 23 Vague. Objection. for a legal conclusion. 24 25 THE WITNESS: Objection. May call So access is a more precise technical term, and that to me implies that a Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 147 1 computer, not necessarily a human being, but a 2 computer has requested some data from another 3 computer, and that request was successful and the 4 data was transferred. 5 BY MR. HUDIS: 6 7 Q. What does it mean to download content from an Internet website? 8 9 10 MR. BECKER: Objection. May call for a legal conclusion. Vague. Objection. Objection. May be argumentative. 11 THE WITNESS: Again, that's a vague term, 12 like view. 13 individual human being at a computer, download 14 implies taking some content from another location 15 and having it copied on your personal computer, for 16 example. 17 BY MR. HUDIS: 18 Q. But from the standpoint of an Could you tell us what an HTTP question is, 19 otherwise known as a hypertext transfer protocol 20 request? 21 A. It is one of a series of operations -- 22 protocol operations defined in the HTTP protocol 23 specification. 24 25 Q. And what does it do? MR. BECKER: Objection. Vague. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 148 1 THE WITNESS: 2 of requests. 3 Well, there's different kinds BY MR. HUDIS: 4 Q. There are different kinds of HTTP requests? 5 A. Yes. 6 Q. All right. 7 are? Are there many? 8 9 Could you tell me what they MR. BECKER: Objection. Compound. BY MR. HUDIS: 10 Q. Are there many types of HTTP requests? 11 A. Okay. Let me preface this by saying I 12 would want to review the HTTP protocol 13 specification, but there are several, I can say 14 that for a fact. 15 16 17 Q. All right. So if you could name me a few of the ones that you recall at this time. A. One of the more common requests is the get 18 request, g-e-t. 19 asks for a particular URL from a server. 20 21 22 23 24 25 Q. And that request is how a client All right. What's another type of HTTP request? A. The post request is used to add data to, for example, a web form on the server. Q. Can you tell us another type of HTTP request? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 149 1 A. The head request asks for the metadata 2 associated with the document, such as the last 3 modified time or the number of bytes. 4 Q. Can you name another type of HTTP request? 5 A. There is a put request, and I would have to 6 7 consult for the precise definition of that one. Q. What generally does a put request do? 8 MR. BECKER: 9 THE WITNESS: 10 MR. BECKER: 11 THE WITNESS: Objection. Vague. I'd want to -Objection. Competence. I'd want to look at the HTTP 12 protocol specification. 13 familiar with. 14 BY MR. HUDIS: 15 16 17 18 19 20 21 22 23 Q. It's not something I'm Is there any other type of HTTP request that you can think of as we sit here now? A. There are others, and I do not know what they are right now. Q. If an Internet user wants to obtain data from a website, would that be a get request? MR. BECKER: Objection. Objection. Hypothetical. Vague. THE WITNESS: A get request is one of the 24 more common mechanisms for accessing data from an 25 HTTP server. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 150 1 2 3 BY MR. HUDIS: Q. transfer? 4 5 What is a file transfer protocol or an FTP MR. BECKER: Objection. Vague. Objection. May be compound. 6 THE WITNESS: So the file transfer protocol 7 is a protocol specification written by Jon Postel, 8 which specifies a series of operations in which a 9 client may get listings of files and transfer 10 files. 11 Jon is J-o-n, by the way. 12 MR. HUDIS: 13 Postel is P-o-s-t-e-l. BY MR. HUDIS: 14 Q. What is an rsync data transfer? 15 A. Rsync is another mechanism for the transfer 16 of files with a particular focus on replication of 17 one archive on a system to an identical archive on 18 another system. 19 20 21 Q. Does an archive -- does an F -- strike that. Does an rsync data transfer ensure that the 22 data on the source server and the destination 23 server are the same? 24 25 MR. BECKER: Objection. Vague and ambiguous. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 151 1 2 Objection. Objection. 3 Assumes facts not in evidence. Lacks foundation. THE WITNESS: The intent of rsync is 4 replication. 5 know what specific steps the rsync software takes 6 to verify the identity. 7 files are different, but again, I just don't know 8 what those mechanisms are. 9 BY MR. HUDIS: 10 Q. However, the word assurance, I do not So it could be that the Does an rsync transfer typically -- is an 11 rsync transfer typically used to synchronize files 12 and directories between two systems? 13 14 MR. BECKER: ambiguous. 15 Objection. Vague and May assume facts not in evidence. THE WITNESS: Rsync is typically used -- we 16 use it internally to make a replica of one of our 17 servers on another one as a backup. 18 BY MR. HUDIS: 19 20 21 22 23 Q. What does it mean to post content to an Internet website? MR. BECKER: Objection. Vague and ambiguous. THE WITNESS: I can think of two meanings 24 of that term. 25 out a form such as a comment. So the first meaning is a user fills And that data then Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 152 1 appears on that website, for example, at the end of 2 a blog post. 3 So that's example 1. Example 2 would be taking a file and 4 transferring it on to another system, which then 5 becomes publicly visible, much as one would do if 6 we were updating our blog and it is hosted on some 7 other site. 8 BY MR. HUDIS: 9 10 Q. And what does it mean to publish content to an Internet website? 11 MR. BECKER: Objection. 12 actually, objection. 13 conclusion; vague. 14 May call for -- argumentative. 15 Does call for a legal Objection. THE WITNESS: Ambiguous; Publish is a vague term. 16 Post is more precise, and it's a term that I prefer 17 to use. 18 BY MR. HUDIS: 19 20 21 22 23 Q. You've never used the term publish with respect to transferring data to another website? MR. BECKER: Objection. Objection. Argumentative. Vague as to time period. THE WITNESS: I have used the word publish. 24 Just like many laymen, I've used the term 25 imprecisely at times. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 153 1 2 3 BY MR. HUDIS: Q. Okay. To you does post and publish mean the same thing, only post is a more precise term? 4 MR. BECKER: Objection. Argumentative. 5 Objection. May call for a legal conclusion. 6 Objection. Assumes facts not in evidence. 7 8 9 10 THE WITNESS: No. BY MR. HUDIS: Q. Have you ever posted content to Internet Archive's website? 11 A. Yes. 12 Q. Do you remember when for the first time? 13 Just a year would be fine. 14 MR. BECKER: 15 THE WITNESS: Objection. Relevance. I don't remember the year. 16 think it probably had the numbers 19 at the 17 beginning. 18 BY MR. HUDIS: 19 Q. So sometime in the 1990s, maybe? 20 A. I would be speculating, but that would be 21 22 23 24 25 my guess. Q. We discussed earlier the concept of incorporation by reference. Is the mere listing of a standard in the government regulation incorporation by reference? Alderson Reporting Company 1-800-FOR-DEPO I Carl Malamud May 12, 2015 San Francisco, CA Page 154 1 MR. BECKER: 2 conclusion. 3 Argumentative. 4 evidence. 5 6 7 Objection. Objection. Vague. Objection. Objection. THE WITNESS: Calls for a legal Objection. It assumes facts not in May be a hypothetical. No, it is not. BY MR. HUDIS: Q. In your experience what types of documents 8 have been incorporated by reference by a 9 governmental agency? 10 MR. BECKER: 11 conclusion. 12 Vague. 13 Objection. Objection. Objection. Calls for a legal Competence. Objection. Argumentative. THE WITNESS: Are you talking about the 14 Code of Federal Regulations, or is this kind of a 15 general-purpose question? 16 BY MR. HUDIS: 17 Q. A general-purpose question. 18 A. I can give you specific examples. 19 Q. Please. 20 A. Well, in the Code of Federal Regulations, a 21 number of agencies have incorporated documents. 22 The Department of Education, for example, has 23 incorporated by reference the standards at issue in 24 this litigation. 25 Q. Other than standards, what other documents Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 155 1 have you observed incorporation by reference into 2 governmental regulations? 3 4 MR. BECKER: conclusion. 5 Objection. Objection. THE WITNESS: Calls for a legal Competence. My focus has been on 6 standards incorporated by reference into the Code 7 of Federal Regulations. 8 for. 9 BY MR. HUDIS: 10 Q. So that's what I'd look Which brings me to my next question. When 11 did you first become interested in making available 12 to the Internet public documents that have been 13 incorporated by reference by some governmental 14 agency? 15 MR. BECKER: 16 in evidence. 17 Objection. 18 Objection. Objection. Assumes facts not Lacks foundation. Vague as to time period. THE WITNESS: In 2008 I posted California's 19 Title 24 to our website. 20 BY MR. HUDIS: 21 22 23 24 25 Q. And that is when you first became interested in this area? A. It's when I became interested in technical standards that have the force of law. (PLAINTIFFS' EXHIBIT 22 WAS MARKED.) Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 156 1 2 BY MR. HUDIS: Q. Mr. Malamud, I've placed in front of you a 3 document that we have marked as Exhibit 22 bearing 4 production numbers AERA_APA_NCME 32079 through 5 32228. 6 7 8 9 I'd like to know if you recognize the document. A. Well, it appears to be an incomplete set of excerpts from a book I wrote. 10 MR. BECKER: It appears to be. I'd like to just object to the 11 extent that this document may be incomplete, and to 12 the extent that this document appears to have 13 handwriting on page 32082, and may have other 14 notations throughout it. 15 MR. HUDIS: Counsel, could I see your copy? 16 It should not have -- okay. 17 handwritten notations, they shouldn't be there on 18 your copy, and I don't think they are on 19 Mr. Malamud's copy as the original exhibit. 20 21 22 If you see any other So if it does contain handwritten notes, we can -THE WITNESS: There are several handwritten 23 notes on Bates number 32087, for example, has a 24 series of handwritten notes. 25 my name on 32086. There is a mark under There is writing on 32088. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 157 1 MR. HUDIS: Oh, those are not our 2 handwriting. 3 it from the Internet. 4 It was on the document as we obtained So, Counsel, just to address your 5 objections, this is only one chapter from the whole 6 book. 7 BY MR. HUDIS: 8 9 Q. So, Mr. Malamud, could you please turn to production page 32224 of Exhibit 22. 10 A. Okay. 11 Q. And if you see the penultimate paragraph at 12 the bottom where it starts with "Many 13 jurisdictions"? 14 A. Yes. 15 Q. All right. The second sentence and the 16 third sentence say, "Even a private standards body 17 might be considered by the courts to be 18 quasi-governmental. 19 make standards a procurement requirement making 20 copyright enforcement questionable at best." 21 Many places such as the U.S. Was this one of your early thoughts on 22 incorporation by reference? 23 MR. BECKER: 24 THE WITNESS: 25 Objection. Vague. I'm not a lawyer, and this is not about incorporation by reference. Alderson Reporting Company 1-800-FOR-DEPO This is Carl Malamud May 12, 2015 San Francisco, CA Page 158 1 about standards made by quasi-governmental 2 organizations. 3 BY MR. HUDIS: 4 Q. A totally different topic. Could we turn to the next page. Page 3225 5 of Exhibit 22. 6 the page, "I gave a little speech about the morals 7 necessity of disseminating standards." 8 9 It says two-thirds of the way down What did you mean by that? A. This was a -- 10 MR. BECKER: 11 THE WITNESS: Objection. Vague. This was in the context of a 12 visit to the International Organization For 13 Standards or organization, known as -- 14 International Organization For Standardization, 15 known as ISO. 16 name, which says something about them. 17 The acronym is different than the And this was the organization that was 18 attempting to have the whole Internet run on the 19 open systems interconnection protocol suite, and my 20 little speech to the gentlemen that I visited was 21 that if they wanted their protocol suite to be 22 ubiquitous, to be globally adopted, that would only 23 work if those standards were readily available for 24 people to read. 25 BY MR. HUDIS: Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 159 1 2 Q. mean -- did you mean readily available for free? 3 4 When you say "readily available," do you MR. BECKER: Objection. Vague. Objection. Relevance. 5 THE WITNESS: The IETF made its protocol 6 specifications available for me. 7 moral lecture to the International Organization For 8 Standardization was that if they wished to win this 9 race to become the basis for the modern Internet, And my little 10 that would only happen if their standards were, in 11 fact, available for free, so anybody could read 12 them. 13 BY MR. HUDIS: 14 15 Q. talking about applying Bruno to the ISO world." 16 17 The next paragraph says, "We then started First of all, what is Bruno? A. Bruno was a project that I undertook with 18 the blessings of the secretary general of the 19 International Telecommunication Union to convert 20 and post the ITU specifications to the Internet so 21 anybody could read them for free. 22 23 24 25 Q. So it was basically wide dissemination of documents on the Internet? A. Of ITU specifications. And the ITU is specifications for the telephone network. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 160 1 Q. What is an ITU specification? 2 A. How a modem works, for example. 3 Q. And please define ISO. 4 A. ISO is the International Organization for 5 6 7 8 9 10 Standardization. Q. And the next sentence begins with Eicher. Who is Eicher? A. Eicher was the secretary general of the International Organization for Standardization. Q. Now, the rest of this paragraph reads, 11 "Eicher was quite frank. 12 revenues came from the sale of standards documents. 13 How did I propose to replace that revenue? 14 more importantly, ISO was controlled by its member 15 organizations, which also made much money from 16 standards sales. 17 groups like ANSI that posting standards for free 18 would help them?" 19 20 25 percent of ISO Even How did I propose to convince Do you see that? A. 21 Yes, I do. MR. BECKER: 22 speaks for itself. 23 Objection. The document BY MR. HUDIS: 24 25 Q. Objection. Relevance. In this context -- sorry. I'm sorry if I spoke over you. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 161 1 In this context, what is ANSI? 2 A. 3 Institute. 4 Q. ANSI is the American National Standards So you pose a series of questions here on 5 page 32225, and then on the next page you say, and 6 this is on page 32226 of Exhibit 22, "I proposed my 7 high resolution/low resolution compromise. 8 plan would post low resolution versions of 9 documents for free on the network and allow ISO and The 10 ANSI to continue to sell high resolution versions 11 either on paper or electronically." 12 13 So was that your answer to the question that you posed on the prior page, 32225? 14 15 MR. BECKER: Objection. The document speaks for itself. 16 THE WITNESS: It was one of my thoughts in 17 1991 as to a way that ISO could function in a 18 modern world. 19 BY MR. HUDIS: 20 Q. Then in two paragraphs later, you say, "The 21 crucial assumption was that people with the free 22 version would then pay for documents." 23 end of that paragraph it says, "Giving away 24 standards would lead to increased revenues." 25 And at the So here is my question about that crucial Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 162 1 assumption. 2 What if people who had copies of lower 3 resolution versions of these documents were just 4 fine with this quality? 5 finish. 6 high resolution copies? 7 What if -- if I may What if they did not want to pay for the MR. BECKER: 8 Objection. 9 speaks for itself. Objection. Relevance. 10 Objection. 11 also hypothetical. 12 Compound. Objection. Objection. The document Argumentative. competence. 13 Assumes facts not in evidence. Calls for speculation. THE WITNESS: And And So this was a informal 14 discussion in 1991. 15 experience on that particular topic, and I actually 16 believe that that statement is true. 17 BY MR. HUDIS: I have since gathered more 18 Q. On what basis? 19 A. When I put the SEC EDGAR database online 20 for free, there was great speculation that that 21 would destroy the revenues of those vendors that 22 were selling the reports of public corporations. 23 And after I turned that service back over 24 to the Securities and Exchange Commission, I 25 donated my software and hardware and they begin -- Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 163 1 began ranning it -- running it, I had the president 2 of one of those vendors that was in the industry 3 come up to me and say, "You know? 4 went way up because a lot more people were reading 5 those EDGAR documents, and those that were serious 6 about the financial industry began subscribing to 7 all our commercial services, to have all the back 8 copies, to have red lines, to have all the 9 value-added things that the industrial folks can 10 do." 11 Our business topic. So that's my personal experience with that 12 I'm glad people are still reading this 13 book. 14 BY MR. HUDIS: 15 Q. Mr. Malamud, why did you become interested 16 in making available to the public, documents that 17 were incorporated by reference by a governmental 18 agency? 19 MR. BECKER: 20 conclusion. 21 Objection. 22 Objection. Calls for a legal foundation. 23 Objection. Vague and ambiguous. Argumentative. THE WITNESS: Objection. Lacks Public.Resource.Org was 24 founded with the aim of making government 25 information more accessible with the particular Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 164 1 focus on the law. 2 Information such as building codes and fire 3 codes are, in fact, the law. 4 critically important legal documents. 5 why I became interested in them. 6 BY MR. HUDIS: 7 Q. 8 9 10 And they are And that's What did you do -- strike that. What did you decide to do about making available to the public, documents that were incorporated by reference by a governmental agency? 11 MR. BECKER: 12 conclusion. 13 Objection. 14 Objection. Objection. Calls for a legal Vague and ambiguous. Vague as to time period. THE WITNESS: 15 question? 16 Could you repeat that BY MR. HUDIS: 17 Q. Yes. What did you do -- decide to do about 18 making available to the public documents that were 19 incorporated by reference by a governmental agency? 20 MR. BECKER: 21 THE WITNESS: Same objections. So making available, I don't 22 know what that term means, but what I did is I 23 posted California's Title 24 on our website at the 24 time, Bulk.Resource.Org. 25 BY MR. HUDIS: Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 165 1 Q. 2 That's exactly what I meant. So after you posted Title 24, what other 3 types of materials did you start posting after that 4 of like kind? 5 MR. BECKER: Objection. 6 ambiguous. 7 Vague and Vague as to time period. 8 9 10 What -- as to "like kind." THE WITNESS: Objection. If by "like kind" you mean building codes and similar documents -BY MR. HUDIS: 11 Q. I do. 12 A. I did a careful survey of state regulations 13 and statutes looking for explicit and deliberate 14 incorporation by reference, and posted a series of 15 building electrical, fire, plumbing codes. 16 17 18 Q. What did you mean by "explicit and deliberate incorporation by reference"? MR. BECKER: Objection. Calls for legal -- 19 may call for a legal conclusion. 20 standing objection to this line of questioning to 21 the extent that it is not asking about the 1999 22 standards. 23 Additionally, a It is beyond the 30(b)(6) designation. THE WITNESS: I looked for a explicit 24 mention of a specific standard for a particular 25 year and the words "incorporated by reference," as Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 166 1 opposed to a passing mention of a document or a 2 mention of the adoption of a document but not 3 specifying which specific edition of that document 4 they were talking about. 5 6 7 8 (PLAINTIFFS' EXHIBIT 23 WAS MARKED.) BY MR. HUDIS: Q. Mr. Malamud, do you recognize this document? 9 A. Yes, I do. 10 Q. This is Exhibit 23. 11 A. This appears to be e-mail from me to What is this document? 12 Jonathan Siegel of the Administrative Conference of 13 the United States. 14 Q. And who is Jonathan Siegel? 15 A. I don't remember his exact title. He was 16 in a capacity as a research director or a program 17 director for the activities of ACUS, the 18 Administrative Conference of the United States. 19 20 21 Q. That brings me to my next question. Who or what is ACUS? A. ACUS is a governmental body which is 22 partially appointed by the president and partially 23 appointed by the chairman, who is appointed by the 24 president, and it is the -- a body that formulates 25 recommendations on administrative law. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 167 1 2 MR. HUDIS: We're going to go off the record. 3 THE WITNESS: 4 MR. HUDIS: 5 THE WITNESS: 6 THE VIDEOGRAPHER: 7 He wants to switch media. Yeah. This marks the end of Disc 2, Volume 1 in the deposition of Carl Malamud. 8 9 Okay. The time is 2:18, and we are off the record. 10 (Recess taken.) 11 THE VIDEOGRAPHER: This marks the beginning 12 of Disc 3, Volume 1 in the deposition of Carl 13 Malamud. 14 15 16 17 18 The time is 2:26, and we are on the record. BY MR. HUDIS: Q. Mr. Malamud, Exhibit 23, do you have any reason to doubt that this document is authentic? THE VIDEOGRAPHER: 19 I've got to stop. 20 Shoot, sorry, guys. had an accident here. Can I stop? I'm so sorry. 21 THE WITNESS: 22 MR. HUDIS: 23 (Discussion off the record.) 24 THE VIDEOGRAPHER: I 25 That's okay. Yep. This marks the beginning of Disc 3, Volume 1 in the deposition of Carl Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 168 1 Malamud. 2 3 4 5 The time is 2:28, and we are on the record. BY MR. HUDIS: Q. doubt the authenticity of Exhibit 23? 6 7 MR. BECKER: Objection to the extent that it is not clear where this document has come from. 8 9 Mr. Malamud, do you have any reason to THE WITNESS: It appears to be e-mail from me to Mr. Siegel, but I would want to check it. 10 this something we disclosed to you or -- 11 Is BY MR. HUDIS: 12 Q. It's something we found on the Internet. 13 A. Oh, okay. 14 15 16 17 It appears to be the e-mail that I sent, yes. Q. And what was the reason that you sent this e-mail of October 1, 2011 to Mr. Siegel? A. I was a member of the committee that was 18 looking at the issue of incorporation by reference 19 for the Administrative Conference for the United 20 States. 21 22 23 24 25 Q. And why did you write this particular e-mail to Mr. Siegel? MR. BECKER: Objection to relevance as to ACUS and this line of questioning. I'll note that for category 21, Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 169 1 Public.Resource has designated Carl Malamud only as 2 to the -- its participation, if any, in Federal 3 Government committees on the subject of 4 incorporation by reference of the 1999 standards 5 into any government laws, statutes, regulations or 6 ordinances. 7 BY MR. HUDIS: 8 Q. You may answer. 9 A. I had some concerns about the -- the 10 procedures and the way that the committee was going 11 about doing its deliberations on incorporation by 12 reference. 13 who had overall direction over the committee 14 process. So I wrote this e-mail to Mr. Siegel, 15 Q. And which committee was that? 16 A. The committee -- I don't know what the 17 formal name was. 18 dealing with the issue of incorporation by 19 reference. 20 Q. 21 22 23 24 25 It was the committee that was And in paragraph 1, what did you mean by the preamble? A. The preamble to the proposed recommendation that the Administrative Conference was considering. Q. And you say here in paragraph numbered 1 for the preamble, "Would it make sense to Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 170 1 acknowledge that the issue of copyright and 2 standards, after they've been incorporated into 3 law, is unsettled and that ACUS is not taking a 4 position on this subject?" 5 6 MR. BECKER: speaks for itself. 7 What did you mean? Objection. Objection. THE WITNESS: The document Vague. I felt it inappropriate for 8 ACUS to be taking a strong position on what the 9 copyright status was of documents incorporated into 10 law. 11 BY MR. HUDIS: 12 Q. Why? 13 A. Frankly, there was a young staff member who 14 was doing the research for this recommendation who 15 felt very strongly that standards incorporated by 16 reference into law maintained their copyright, even 17 as a part of the Code of Federal Regulations. 18 as I said in this paragraph here, I think it would 19 be fair to say this is above our pay grade. 20 that the young staffer was -- was stretching. 21 22 Q. And I felt So that brings me to my next question. The next sentence says, "There is obviously 23 a strong bias towards protecting and honoring 24 copyright on the one hand, but we also have the 25 Veeck," V-e-e-c-k, "decision and some ambiguity in Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 171 1 the law. 2 quote, "above our pay grade," period, unquote. 3 A couple of questions on that passage. 4 What did you mean in the third sentence by 5 I think it would be fair to say this is," "some ambiguity in the law"? 6 MR. BECKER: 7 document speaks for itself. It's beyond the scope 8 of the 30(b)(6) designation. And the objection on 9 relevance grounds. Again, same objections. The Again, objection that this may 10 call for a legal conclusion. 11 THE WITNESS: So I'm not a lawyer, but I 12 read the Veeck decision, and it seemed to me that 13 the researcher at ACUS was drawing conclusions from 14 the Veeck decision that while perhaps appropriate 15 for a federal judge to be making, were 16 inappropriate to be laying them down as categorical 17 statements. 18 decision in ways that were perhaps not supported by 19 the language. 20 BY MR. HUDIS: 21 22 23 24 25 Q. I felt she was reading into the Veeck And again, I'm not a lawyer. I understand. What conclusions was the researcher drawing from Veeck that concerned you? MR. BECKER: Objection. Vague. Objection. Objection. Relevance. Lacks foundation. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 172 1 THE WITNESS: So it's pronounced Veeck, by 2 the way. 3 preamble was taking at the time a strong position 4 that standards incorporated into reference by law 5 had copyright and that the law could have 6 copyright. 7 It's a Dutch name. P. Veeck. It -- the And again, I felt that this young staffer 8 was simply moving beyond what a body such as the 9 Administrative Conference of the United States 10 could say is the established truth. 11 speculating, to use the language we use in 12 depositions. 13 BY MR. HUDIS: 14 15 16 17 18 Q. I felt she was And what did you mean by "I think it would be fair to say this is above our pay grade"? MR. BECKER: speaks for itself. Objection again. Objection. THE WITNESS: The document Asked and answered. So I'm not a lawyer, but I 19 have looked at a number of documents that indicate 20 that in the United States the law has no copyright. 21 And that includes, in many formulations, materials 22 incorporated by reference into the law. 23 from ANSI, for example, B-h-a-t-i-a, has stated 24 many times that standards incorporated by reference 25 are the law, and it seemed to me that that was a Alderson Reporting Company 1-800-FOR-DEPO Mr. Bhatia Carl Malamud May 12, 2015 San Francisco, CA Page 173 1 long-standing policy of the United States. 2 And again, this was something that if one 3 were to draw a different conclusion that a portion 4 of the law in fact, did maintain copyright and one 5 needed a license to access and use that material, 6 that was certainly not a statement that the 7 organization such as the Administrative Conference 8 of the United States should be making. 9 10 11 (PLAINTIFFS' EXHIBIT 24 WAS MARKED.) BY MR. HUDIS: Q. Mr. Malamud, I'll now show you what's been 12 marked as Exhibit 24. 13 about the document, what is On The Media? Before I ask you questions 14 A. Oh, that's a National Public Radio program. 15 Q. Who is Bob Garfield? 16 A. I assume he's a host or reporter. 17 Q. Do you recognize Exhibit 24? 18 A. No, I do not. 19 20 21 I remember doing an interview with On The Media, however. Q. Did you do this interview with On The Media on or about April 13, 2012? 22 A. That sounds about right. 23 Q. What was the purpose of the interview? 24 A. I think you'd have to ask On The Media. 25 Q. What was your purpose for giving the Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 174 1 interview? 2 MR. BECKER: 3 THE WITNESS: Objection for relevance. If a well-respected program 4 such as On The Media by National Public Radio wants 5 me to talk to them, I will generally make myself 6 available. 7 BY MR. HUDIS: 8 9 10 Q. you gave in April of 2012 to Mr. Garfield. I'd like to ask you a couple of questions. 11 12 Exhibit 24 appears to be an interview that If you would turn in Exhibit 24 to production page AERA_APA_NCME 32076. 13 A. Okay. 14 Q. Mr. Garfield in the middle of the page Yes. 15 asks, "There is an expense attached to developing 16 and codifying these standards. 17 revenue away from those who do this work, then what 18 happens?" 19 them. 20 If we take the And you provide two answers. I'll read "Well, there's two answers to that. One is 21 that the nonprofits that develop these standards 22 have a lot of different revenue streams. 23 conferences. 24 standards that aren't law. 25 majority of their standards are not. They do certification. They do They develop In fact, the vast Alderson Reporting Company 1-800-FOR-DEPO And so maybe Carl Malamud May 12, 2015 San Francisco, CA Page 175 1 they need to adjust their business model, 2 particularly given the fact that they are a 3 nonprofit public charity." 4 You continue. "Answer number two is that 5 government has shirked its responsibilities. 6 said 'Gee, we can just incorporate these privately 7 developed standards in the law and we won't have to 8 pay anything.' 9 screwed up by this are the citizens that need to 10 And the only people that get read the law." 11 12 It Do you recall giving those answers to Mr. Garfield at the interview of April 2012? 13 MR. BECKER: Objection. Mr. Malamud has 14 said that he does not recognize this document. 15 Objection to the extent that it's not clear how 16 this document was transcribed or its authenticity. 17 Objection with regards to relevance, particularly 18 on the grounds that the plaintiffs have said that 19 the finances and revenue of the plaintiffs, other 20 than directly related to the sale of the 1999 21 standards, is not at issue in this case as they so 22 claim. 23 24 25 Objection on the grounds that the question assumes facts not in evidence. MR. HUDIS: I don't mind the objections, Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 176 1 Counsel. 2 indicate the -- to the witness how he should answer 3 his questions. 4 BY MR. HUDIS: 5 6 Q. I just mind the ones that would try to So my question about this document, do you recall this interview? 7 A. Yes, I do. 8 Q. All right. 9 10 11 12 Do you recall giving this answer that I just read into the record? A. No, I don't, but I'd be happy to discuss the general topics that are addressed there. Q. 13 Sure. So if standards development organizations 14 lose their copyright by incorporation by reference, 15 is it your theory that the standards 16 organization -- development organization should 17 make their money some other way? 18 MR. BECKER: Objection. 19 May call for a legal conclusion. 20 Hypothetical. 21 Objection. witness. 22 Vague. BY MR. HUDIS: Objection. Objection. May mischaracterize the 23 Q. You may answer. 24 A. I have testified on this subject before 25 Congress saying that I believe that when a standard Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 177 1 is incorporated by reference, usually with the 2 active ascents of -- of the SDO, that organization 3 is given a gold seal of approval, right. 4 the original creator of what has become a portion 5 of American law, and that that is a unique 6 marketing opportunity. 7 They are That opportunity can be used to -- to sell 8 authenticated versions of the standard. 9 auxiliary products. To sell That there are a number, in 10 general, of business models that can emerge out of 11 this favored position. 12 As to how that specifically applies to a 13 specific SDO, again, we would want to look at -- I 14 would want to look at the very specific nature of 15 that organization. 16 about the unique position of having a standard 17 incorporated by reference into federal law and how 18 favorable that is. 19 BY MR. HUDIS: 20 Q. But I still talk in general And is it your view that once incorporated 21 by reference, the standard loses its copyright 22 enforcement ability and the standards development 23 organization that wrote that standard, 24 "incorporated by reference," would have to obtain 25 its income some other way than selling the Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 178 1 standard? 2 MR. BECKER: Objection. Calls for a legal 3 conclusion. 4 Lacks foundation and assumes facts not in evidence. 5 Objection. 6 Objection. Argumentative. Objection. Vague. THE WITNESS: So I disagree with that 7 characterization. 8 law is available to citizens, that does not 9 preclude a standards development organization I -- I believe that even if the 10 continuing to sell that document. 11 selling an authenticated version, a redlined 12 version, a version with commentary. 13 there are a number of ways one can continue to make 14 that -- that document available for sale. 15 BY MR. HUDIS: 16 Q. Particularly I believe Is one of your alternative theories that 17 once a standard is incorporated by reference, that 18 the government should pay for it? 19 MR. BECKER: Objection. 20 legal conclusion. 21 Assumes facts not in evidence. 22 May call for a Argumentative. 23 24 25 Objection. THE WITNESS: Lacks foundation. Objection. So there are some things I know and some things I can speculate on. The thing that I know is that the law in Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 179 1 the United States has no copyright, and one is free 2 to read and speak the law. 3 license, without needing permission. 4 Without needing a What I can speculate on is different ways 5 that one might go about handling issues such as 6 revenue and whether the government should be paying 7 or not, and I frankly don't have strong views as to 8 whether or not the -- this scenario that I posited 9 here is the right solution. 10 MR. BECKER: I would advise the witness not 11 to speculate and only to give those answers that 12 the witness knows. 13 14 15 THE WITNESS: Okay. BY MR. HUDIS: Q. Do you have any views, whether they're 16 strong or not, whether once a standard is 17 incorporated by reference into a government 18 regulation, the government should pay for that? 19 MR. BECKER: Objection. May call for a 20 legal conclusion. 21 Lacks foundation and assumes facts not in evidence. 22 And argumentative. 23 Objection. THE WITNESS: Vague. Objection. So the government is already 24 paying in many different revenue streams for 25 standards. They pay for access. They help fund Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 180 1 development. 2 created, and there are other revenue streams that 3 go to the organization, such as the funding of 4 basic research. 5 And in many cases standards are So I don't think it's an either/or 6 proposition. 7 money flowing. 8 BY MR. HUDIS: 9 10 Q. I think there's already a lot of I don't believe your last answer, Mr. Malamud, answered my question. 11 A. Okay. Could you restate the question? 12 Q. Sure. Do you have any views, whether they 13 are strong or not, whether once a standard is 14 incorporated by reference into a government 15 regulation, the government should pay for that? 16 17 MR. BECKER: All the same objections and also asked and answered. 18 THE WITNESS: I believe I did answer your 19 question in the sense of the government is already 20 paying. 21 22 23 Now, my view is it proper for government money to go to an SDO? MR. HUDIS: In theory, yes. Just for the record Exhibit 24 24 bears production numbers AERA_APA_NCME 32075 25 through 32078. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 181 1 2 3 (PLAINTIFFS' EXHIBIT 25 WAS MARKED.) BY MR. HUDIS: Q. Mr. Malamud, I've placed in front of you a 4 document that's been marked as Exhibit 25, bearing 5 production numbers AERA_APA_NCME 31764 through 6 31768. 7 8 9 10 11 12 13 Do you recognize this document? A. It appears to be an essay that I wrote for boingboing. Q. This appears to be a printout of that. Do you have any reason to doubt the authenticity of this document, Exhibit 25? A. No, but I'd want to double check. It appears to be the essay that I wrote. 14 Q. And what is boingboing? 15 A. Boingboing is a blog. 16 Q. And do you recall posting this blog on 17 18 March 19th, 2012, to boingboing? A. I'm not sure of the exact date, but I did, 19 in fact, author a boingboing official guest 20 memorandum of law. 21 Q. Why did you call it a memorandum of law? 22 A. Because it was talking about an obscure 23 topic in a publication that reaches a very general 24 audience. 25 Q. Under the first heading Roman numeral I, Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 182 1 code is law, Lessig, L-e-s-s-i-g. 2 paragraph it says, "Public.Resource.Org spent 3 $7,414.26 buying privately produced, technical 4 public safety standards that have been incorporated 5 into U.S. Federal law." In the second 6 And then I'm skipping a sentence. 7 says, "We have started copying those 73 standards 8 despite the fact" that -- "despite the fact they 9 are festooned with copyright warnings, shrink wrap 10 It then agreements and other dire warnings." 11 When did Public.Resource start copying 12 these 73 standards? 13 MR. BECKER: Objection. Assumes facts not 14 in evidence; lacks foundation; vague; argumentative 15 as to "copying." 16 THE WITNESS: So these were printed 17 documents, and it was a period of January through 18 approximately March 19th. 19 the period. 20 BY MR. HUDIS: Actually, March 15th was 21 Q. Of what year? 22 A. Of 2012. 23 Q. And could you turn to the next page, page 24 31765 of Exhibit 25. 25 law isn't public, it isn't law." Under Roman numeral II, "If a The middle Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 183 1 paragraph just before the picture that says, 2 "Notice," you see where it says the paragraph 3 starts "Public.Resource.Org has a mission"? 4 A. Yes, I do. 5 Q. The next sentence says, "We've taken a 6 gamble and spent $7,414.26 to buy 73 of these 7 technical public safety standards that are 8 incorporated into the U.S. Code of Federal 9 Regulations. We made 25 print copies of each of 10 these standards and bound each document in a red, 11 white, blue patriotic certificate of incorporation 12 stating that the documents are legally binding on 13 citizens and residents in the United States, and 14 that criminal penalties may apply for 15 noncompliance." 16 17 In this paragraph why did you state "we've taken a gamble"? 18 19 MR. BECKER: Objection. The document speaks for itself. 20 THE WITNESS: $7,414.26 is a lot of money 21 to be spending on a program that I simply decided 22 was important to do. 23 BY MR. HUDIS: 24 Q. And why was it important? 25 A. Because the law needs to be available in Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 184 1 2 the United States. Q. At the bottom of this page, 31765, it says, 3 "We know from all the copyright warnings, terms of 4 use, scary shrink wrap agreements and other red hot 5 rhetoric that accompanies these documents, that the 6 producers continue to believe that copies may not 7 be made under any circumstances." 8 9 Is this why you were taking a gamble on making the copies of the technical standards? 10 MR. BECKER: Objection. The document 11 speaks for itself. 12 it's not clear whether the highlighting that's on 13 this page is on the authentic document or whether 14 it's been added to the documents. 15 Objection. THE WITNESS: I'll also note that Yeah, I agree. 16 highlighting in the original. 17 that came from. 18 There was no BY MR. HUDIS: I'm not sure where 19 Q. Must have been from us. 20 A. Okay. 21 Q. The question is, the passage that I just So your question again? 22 read, does this explain why you were taking a 23 gamble by making the copies of the 73 standards? 24 25 MR. BECKER: All the same objections. Also objection for misstates prior testimony and asked Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 185 1 and answered. 2 THE WITNESS: The gamble was the financial 3 risk. 4 something is a lot of money for a small nonprofit 5 like mine. 6 7 8 9 10 (PLAINTIFFS' EXHIBIT 26 WAS MARKED.) BY MR. HUDIS: Q. I now mark as Exhibit 26 a document bearing production numbers AERA_APA_NCME pages 31832 through 31847. 11 12 I mean, spending close to $10,000 on Mr. Malamud, do you recognize this document? 13 A. Yes, I do. 14 Q. What is this document? 15 A. It is a response to the Office of 16 Management and Budget Requests for information on 17 the -- as they put it, the development and use of 18 voluntary consensus standards and in conformity 19 assessment activities. 20 21 Q. Do you have any reason to doubt this letter is authentic? 22 A. No, I do not. 23 Q. And the date of the letter is April 11, 24 25 2012? A. That sounds about right, yes. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 186 1 Q. What was your purpose of writing this 2 letter to Cass Sunstein at the Office of 3 Information of Regulatory Affairs? 4 MR. BECKER: 5 THE WITNESS: Objection. Vague. Ask for information. 6 a request for information. 7 It was BY MR. HUDIS: 8 Q. And what type of information? 9 A. I believe I answered it. It was a request 10 for information about federal participation in the 11 development and use of voluntary consensus 12 standards. 13 Q. 14 And you co-wrote this letter with David Halperin? 15 A. Yes, I did. 16 Q. In the second paragraph on page 31832 of 17 Exhibit 26, it says, "We believe that the 18 fundamental law of the United States requires that 19 the government make standards that are incorporated 20 by reference into federal regulations widely 21 available to the public without charge, and that 22 such standards be deemed in the public domain, 23 rather than subject to copyright restrictions." 24 25 In that sentence, what does "fundamental law" mean? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 187 1 MR. BECKER: 2 speaks for itself. 3 Objection. The document legal conclusion. 4 Objection. THE WITNESS: May call for a That would be primary legal 5 materials. 6 from a law-making entity, such as in the Code of 7 Federal Regulations. 8 BY MR. HUDIS: 9 Q. That's materials that are emanating So what is the fundamental law of the 10 United States that requires standards incorporated 11 by reference into federal law be made public 12 without charge? 13 MR. BECKER: 14 document. 15 conclusion. 16 Objection. Misstates the itself. 17 Objection. May call for a legal Objection. THE WITNESS: The document speaks for It is clearly established 18 that the Code of Federal Regulations and 19 Congressional statutes and supreme court opinions 20 must be made available to the public without 21 restrictions on use, and standards that are 22 explicitly incorporated by reference into the Code 23 of Federal Regulations are part and parcel of the 24 Code of Federal Regulations, and that is a 25 fundamental principle of American law, that this Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 188 1 material must be made available to the public. 2 BY MR. HUDIS: 3 Q. In the final paragraph of page 31832 of 4 Exhibit 26, it says, Public.Resource -- 5 "Public.Resource.Org, whose mission is to make law 6 available to all citizens." Do you see that? 7 A. I'm sorry, what page are we on? 8 Q. The page -- the very first page of the 9 document. 10 A. Yes, I see that. 11 Q. All right. And that mission is done by 12 making the law available on the websites that you 13 mentioned earlier? 14 MR. BECKER: 15 speaks for itself. 16 previous testimony. 17 Objection. The document legal conclusion. 18 Objection. THE WITNESS: Objection. May mischaracterize May call for a Making the law available to 19 all citizens, one mechanism is to post that on our 20 website. 21 BY MR. HUDIS: 22 23 Q. Could you please turn to page 31836 of Exhibit 26. 24 A. Okay. 25 Q. In the middle of the page it says, "A Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 189 1 copyrighted work does not become law simply because 2 the statute refers to it." 3 What did you mean by that? 4 MR. BECKER: 5 speaks for itself. 6 Objection. The document legal conclusion. 7 Objection. THE WITNESS: May call for a This, again, is a subject 8 that we discussed previously when we were 9 discussing incorporation by reference at the state 10 level. 11 incorporation into the law. 12 mention of some external document. 13 BY MR. HUDIS: 14 15 Q. It needs to be an explicit and deliberate Not simply a passing Mr. Malamud, could you please turn to page 31838 of Exhibit 26. 16 A. Okay. 17 Q. At the bottom of the page it says, "In 18 order to be eligible for incorporation for a 19 reference, a publication must meet standards 20 including that the publication substantially 21 reduces the volume of material published in the 22 Federal Register and is reasonably available to and 23 usable by the class of persons affected by the 24 publication." 25 My question is -- Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 190 1 2 MR. BECKER: Counsel? 3 4 5 I'm sorry, where are we, MR. HUDIS: Bottom of 31838. BY MR. HUDIS: Q. My question, Mr. Malamud, is this passage 6 your understanding of a publication that is 7 eligible for incorporation by reference? 8 9 MR. BECKER: Objection. This document speaks for itself, and unintelligible, 10 incomprehensible question. 11 BY MR. HUDIS: 12 Q. You may answer. 13 A. We are quoting one CFR 51.7(a)(3) and 14 (a)(4). 15 it's simply restating what the CFR states. 16 Q. That's what that sentence is doing, is But is this your understanding of a 17 document that would qualify for incorporation by 18 reference? 19 20 21 MR. BECKER: conclusion. Objection. Objection. THE WITNESS: Calls for a legal Vague as to "this." That section of the CFR 22 states two conditions that must be met before a 23 standard or other document can be incorporated by 24 reference in the CFR. 25 BY MR. HUDIS: Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 191 1 Q. Could you turn to page 31839 of Exhibit 26. 2 A. I'm there. 3 Q. And do you see it refers to OMB Circular 4 A-119 at the bottom of the page? 5 A. Yes, I see that. 6 Q. To the best of your knowledge has this 7 circular changed in language since 1980 -- 1998, so 8 far as you're aware? 9 MR. BECKER: Objection. 10 Objection. 11 conclusion. 12 Competence. evidence; lacks foundation. 13 Calls -- may call for a legal Objection. THE WITNESS: Assumes facts not in The document is currently 14 being revised by the Office of Management and 15 Budget, and I believe they published a notice of 16 proposed ruling. 17 BY MR. HUDIS: 18 19 Q. Today has OMB Circular-A119 changed since 19 -- 1998? 20 MR. BECKER: 21 asked and answered. 22 THE WITNESS: All the same objections and Yeah, I don't know. 23 have to look at their website. 24 I would BY MR. HUDIS: 25 Q. On the next page, page 31840 of Exhibit 26, Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 192 1 in the second paragraph at the end of the paragraph 2 it says, "Today the only thing impeding the broader 3 availability to the public of standards 4 incorporation by reference into the law is the 5 interest of standards development organizations in 6 making money by charging for the standards." 7 Do you see that? 8 A. I do. 9 Q. All right. Do you know how much the 10 plaintiffs in this action charge for the 1999 11 Standards of Educational and Psychological Testing? 12 MR. BECKER: 13 Objection. 14 Objection. Competence. BY MR. HUDIS: 15 Q. 16 17 Misleading. Go ahead, Mr. Malamud. MR. BECKER: Excuse me. Argumentative and assumes facts not in evidence. 18 THE WITNESS: 19 anything. 20 is it? 21 I don't believe they charge BY MR. HUDIS: 22 23 24 25 Q. I don't think it's available for sale; At the time you purchased the standards, do you know how much you paid for them? MR. BECKER: Objection. Assumes facts not in evidence. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 193 1 2 3 THE WITNESS: In the $60 range, I believe. BY MR. HUDIS: Q. Could you turn to page 31840. At the 4 bottom on -- in Exhibit 26, it says, "Greater 5 public access to standards" incorporation by 6 reference -- "incorporated by reference into 7 federal regulations might alert policy and industry 8 communities to the fact that federal rules are too 9 often connected to outdated private standards and 10 are in need of updating to improve public safety." 11 What is your support for this statement? 12 MR. BECKER: 13 speaks for itself. 14 Objection. The document legal conclusion. 15 Objection. THE WITNESS: May call for a In surveying the Code of 16 Federal Regulations, I was shocked by how old some 17 of the standards that are still on the books. 18 There are standards from the '40s and '50s and 19 '60s. 20 1960s, which is still required. 21 There is a crane safety standard from the And one has to believe that the state of 22 the art in safety for cranes has probably advanced 23 since that point in time. 24 BY MR. HUDIS: 25 Q. Do you know the plaintiffs' policies or Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 194 1 practices for updating the standards on the 2 educational and psychological testing? 3 MR. BECKER: 4 THE WITNESS: 5 Competence. I don't know what you mean by "practices." 6 Objection. BY MR. HUDIS: 7 8 9 Q. How often they do so; when they do so; the circumstances under which they do so? A. Well, I can answer one part of that 10 question. 11 '99 standard, and a 2014 standard has recently been 12 issued. 13 Q. I believe there was an '85 standard, a Right. Do you know the circumstances under 14 which the standards for educational and 15 psychological testing have been updated? 16 MR. BECKER: Objection. I'll simply note 17 that the witness should not divulge any information 18 that has resulted from attorney-client 19 communications. 20 THE WITNESS: I read on a website that the 21 plaintiffs put together having to do with the 22 revision of the standards and was able to read a 23 little bit about what they were doing and why they 24 were doing it for the 2014 standard. 25 BY MR. HUDIS: Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 195 1 2 Q. And what is your understanding as a result of that reading? 3 MR. BECKER: 4 THE WITNESS: Objection. Vague. Oh, now, I'm not an expert in 5 this area. 6 old and they wanted to revise it. 7 BY MR. HUDIS: 8 9 Q. 26. My take-away was that the standard was If you could turn to page 31845 in Exhibit In the middle of the page it says, "Defenders 10 of upholding copyright protection" and charge -- 11 "protections and charging fees in this context 12 claim that granting citizens more reasonable access 13 to the law will destroy the economic incentives 14 that today motivate private organizations to craft 15 important standards." 16 Who have you heard say this? 17 MR. BECKER: 18 speaks for itself. 19 Objection. The document argumentative. Objection. Relevance; 20 THE WITNESS: 21 MR. BECKER: Assumes facts not in evidence. 22 THE WITNESS: I've heard that statement or I -- 23 a variant of that statement several times. 24 example, there was a hearing before the Pipeline 25 Hazardous Materials Safety Administration known as Alderson Reporting Company 1-800-FOR-DEPO For Carl Malamud May 12, 2015 San Francisco, CA Page 196 1 PHMSA, P-H-M-S-A, and I heard representatives from 2 the National Fire Protection Association, ASTM and 3 asked me all explain that this basic theory would 4 hold in their view. 5 but it's what I've heard many times. 6 BY MR. HUDIS: 7 Q. It's a theory I disagree with, Have you read this theory anywhere? 8 MR. BECKER: 9 THE WITNESS: Objection. Vague. Well, yes, we made a 10 transcript of the PHMSA hearing, so I read it 11 there. 12 BY MR. HUDIS: 13 14 15 Q. Any other writings on this theory besides the PHMSA hearing? A. There's been a couple of speeches by the 16 president of ANSI and by both the current and past 17 president of the National Fire Protection 18 Association of -- on this general line of thought. 19 Q. In that same paragraph the second to last 20 sentence, it says, "We do recognize the importance 21 of giving private SDO," that's standards 22 development organizations? 23 A. That's correct. 24 Q. All right, "private SDOs adequate 25 incentives to create standards." Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 197 1 What incentives did you mean? 2 MR. BECKER: 3 speaks for itself. 4 of context. 5 Objection. The document Lacks foundation. 6 This is a partial quoting out Objection. THE WITNESS: Vague and ambiguous. As my lawyer said, that was 7 taken out of context of a broader discussion of the 8 importance of this area of activity, this society. 9 I do think it is important that SDOs 10 continue to operate. 11 work. 12 I believe they do valuable One of the incentives is what I previously 13 discussed with you, the gold seal of approval of 14 the American government by deeming that a 15 particular standard is, in fact, incorporated by 16 reference in the law. 17 marketing advantage for an organization. 18 BY MR. HUDIS: 19 20 Q. I believe that's a huge So how are the rights to these incentives to create standards to be protected? 21 MR. BECKER: Objection. Vague and 22 ambiguous; confusing; hypothetical; calls for 23 speculation. 24 25 THE WITNESS: rights. Yeah, you used the words Is that right really what you meant? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 198 1 Could you repeat the question? 2 BY MR. HUDIS: 3 4 5 Q. How were the rights to these incentives to create standards to be protected? MR. BECKER: All the same objections, and 6 also objection that this calls for a legal 7 conclusion. 8 THE WITNESS: It sounds to me like you're 9 asking about a legal thing, and what I'm talking 10 about here is the fact that our government has a 11 number of relationships with the SDOs ranging from 12 funding research directly relevant to a standard, 13 to funding research in general for their members. 14 Purchasing documents. 15 where different players can get together. 16 Helping create a platform And so I think there are a number of 17 different mechanisms that can lead the government 18 and our SDOs to work together happily to continue 19 to create these important standards, and yet still 20 satisfy that fundamental requirement that the law 21 must be available to those that must obey it. 22 MR. BECKER: I'd just like to renew my 23 objections, my standing objection concerning the 24 fact that this line of discussion is regarding 25 standards other than the 1999 standards, and is Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 199 1 therefore outside of the scope of the 30(b)(6) 2 designation. 3 BY MR. HUDIS: 4 Q. Mr. Malamud, could you please turn to page 5 31846 in Exhibit 26. 6 understand that SDOs need money to fund their 7 standards development efforts." At the top it says, "We 8 Where is that money supposed to come from? 9 MR. BECKER: Objection. The document 10 speaks for itself. 11 selected and partial quoting of a much longer 12 sentence. 13 Calls for speculation; argumentative. 14 Objection again that this is a Objection. THE WITNESS: Hypothetical. Objection. So the sentence, you read the 15 first half. 16 fund their standards developing efforts. 17 perhaps these organizations have begun treating 18 this revenue stream as an opportunity for a 19 financial windfall at the expense of U.S. 20 citizens." 21 BY MR. HUDIS: 22 Q. "We understand that SDOs need money to But Do you have any basis to say that for the 23 plaintiffs as to the Standards for Educational and 24 Psychological Testing? 25 A. No. That was not an example I had in mind Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 200 1 2 when I wrote that sentence. Q. All right. And so that's -- so we 3 discussed the second half. 4 concentrating on the first half of that sentence. 5 "We understand the SDOs need to fund their 6 standards development efforts." 7 8 9 And I'm still Where is this revenue supposed to come from? MR. BECKER: Objection. 10 calls for speculation. 11 Once again this the document speaks for itself. 12 THE WITNESS: It's a hypothetical. It -- So I do not have to do sharer 13 responsibility for any of the three plaintiffs. 14 I am merely speculating when I say how they should 15 run their businesses. 16 expertise. 17 So It is not my area of But it seems to me that these three 18 organizations have a number of revenue streams, 19 some of them quite substantial. 20 related to the standards. 21 to the standards. 22 important that as the Internet changes things, as 23 we become able to make the law available to all 24 people, that perhaps that might lead to some 25 adjustments in the business models. Some of them Some of them not related And I believe that it's Alderson Reporting Company 1-800-FOR-DEPO But I believe Carl Malamud May 12, 2015 San Francisco, CA Page 201 1 there's a lot of money, particularly at the APA, 2 for example, is a very large organization. 3 don't believe that these organizations would stop 4 developing these standards, because I believe that 5 it's an important and crucial part of their -- 6 their mission. 7 I just And this is my personal speculation about 8 their models. 9 their CFO, and so it's not necessarily an area that Again, I don't run the APA. 10 I know a lot about. 11 I'm not BY MR. HUDIS: 12 Q. This next question basically goes to the 13 rest of the theories posited on page 31846 and 14 31847 of Exhibit 26. 15 out. 16 So I'll just ask it straight Is it your view, Mr. Malamud, that once the 17 standard is incorporated by reference, the SDO who 18 created that standard should look to other sources 19 for revenue than the sale of that standard? 20 MR. BECKER: Objection. Calls for a legal 21 conclusion. 22 facts not in evidence; hypothetical; calls for 23 speculation. 24 a characterization of two entire pages of this 25 document that have not been discussed, and assumes Objection. Argumentative; assumes Objection to the extent that there is Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 202 1 facts not in evidence. 2 THE WITNESS: We previously discussed this 3 topic, and I believe that when a standard has been 4 incorporated by reference into law, the original 5 creator of that standard, the SDO, as we say here, 6 has a number of revenue opportunities, including 7 continued sale of the standard, and particularly an 8 authenticated version, a redlined version, a 9 commentary, a manual. 10 There's all sorts of things one can do. 11 And the fact that this organization was the 12 original creator of that document gives a 13 tremendous credibility. 14 And so I just don't believe that the 15 revenue streams will go away. 16 there is a potential, at least, for an adjustment 17 of business models as time progresses, but that's 18 the case for any organization. 19 BY MR. HUDIS: 20 21 22 Q. I do believe that And what did you mean by "adjustment of business models"? A. I think the Internet has forced government, 23 industry, to adjust the way they do business. 24 I believe that that is equally true for private 25 nonprofit organizations engaged in public missions, Alderson Reporting Company 1-800-FOR-DEPO And Carl Malamud May 12, 2015 San Francisco, CA Page 203 1 2 3 4 such as the APA or such as Public.Resource.Org. Q. And what do you mean by "adjustment" by the way one does business in this context? A. I believe a continual assertion that a 5 document that is the law cannot be copied without a 6 license and special permission is an unfounded 7 assertion. 8 here in Exhibit 26, I gave a series of examples of 9 revenue streams that were possible or already exist And in this letter we are discussing 10 in many of these nonprofit organizations. 11 again, this is something that I believe any 12 organization continually faces as technology 13 progresses. 14 And The printing press forced an adjustment in 15 the business models of legal publishers. 16 Internet has forced a dramatic change in the 17 business models of a large number of organizations. 18 And I just think that that -- that SDOs should not 19 be surprised that they may need to adjust their 20 business models over time. 21 Q. The And that adjustment of a business model 22 will include foregoing a revenue stream from a 23 straight sale of the standards as incorporated by 24 reference? 25 MR. BECKER: Objection. Misstates prior Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 204 1 testimony; argumentative; asked and answered. 2 THE WITNESS: I am not convinced that the 3 revenue stream would go away. 4 my actual experience putting information online 5 that at one time was charged for, and then became 6 available at no cost to citizens. And that is based on 7 And as we discussed earlier in the case of 8 the Securities and Exchange Commission, making the 9 documents more broadly available, vastly increased 10 the number of readers, lead to increased revenue 11 streams for those documents. 12 The Bible is sold, despite the fact that 13 it's available. 14 copy it. 15 of people buy the Bible from publishers because 16 they want the particular edition or version or -- 17 or form factor that that Bible has. 18 BY MR. HUDIS: 19 20 21 Q. You can take the Bible. You can You can print your own edition, but a lot Mr. Malamud, what is your understanding of what a code or a statute is? MR. BECKER: Objection. Calls for a legal 22 conclusion; vague and ambiguous; assumes facts not 23 in evidence; lacks foundation. 24 25 THE WITNESS: Did you mean code or statute? BY MR. HUDIS: Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 205 1 Q. Yes. 2 A. Okay. So a statute is a law passed by a -- 3 typically a legislature is one how would normally 4 use the word statute as opposed to ordinance, for 5 example. 6 7 8 9 A code is a much broader term. It's short for codification. Q. And how is a code to be distinguished from a standard? 10 MR. BECKER: Objection. Calls for a legal 11 conclusion; lacks foundation; assumes facts not in 12 evidence; competence. 13 THE WITNESS: The two terms are often used 14 interchangeably. 15 talking about standards and codes, they are 16 definitely used interchangeably, and in this case 17 by "laymen," I include lawyers and SDO executives. 18 So the terms really are -- are basically conflated. 19 BY MR. HUDIS: And, in fact, when laymen are 20 Q. Synonymous, in your view? 21 A. Oh -- 22 23 24 25 MR. BECKER: Objection. Misstates prior testimony. THE WITNESS: So I believe codes equals standards in common usage. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 206 1 Statutes are different than codes in the 2 sense that a code is a codification of the statute. 3 Each statute is put into a different portion of the 4 code, and therefore functions as a stand-alone 5 document to a particular area of the law, as do 6 many standards. 7 BY MR. HUDIS: 8 9 Q. regulation is? 10 11 And what is your understanding of what a MR. BECKER: Objection. Vague; calls for a legal conclusion; lacks foundation. 12 THE WITNESS: So I'm not a lawyer and I 13 don't know the technical term, but a regulation is 14 what the executive branch does. 15 the legislative branch does. 16 of law. 17 BY MR. HUDIS: 18 19 Q. A statute is what Both have the force Mr. Malamud, what is Kickstarter? MR. BECKER: Objection. Relevance. 20 Objection. 21 of questioning is going to be -- asked for the 22 identities of any donors or potential private -- 23 private donors to Public.Resource.Org that have 24 sought to keep their identities anonymous, and 25 therefore have a privacy interest. Objection to the extent that this line Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 207 1 THE WITNESS: 2 platform. 3 It's a crowd-funding BY MR. HUDIS: 4 Q. What is a crowd-funding platform? 5 A. It is a place where people can create a 6 thing or an idea or a mission and get other people 7 to give them money to carry out that objective. 8 9 Q. Does Public.Resource use Kickstarter to raise operating funds? 10 MR. BECKER: Objection. Irrelevant. 11 Objection. 12 designation. 13 answer implicates the identities of any private 14 donors who have a privacy right. 15 Beyond the scope of the 30(b)(6) Objection to the extent that this THE WITNESS: 16 operating funds. 17 We did not use it to raise BY MR. HUDIS: We did use it. 18 Q. For what purpose? 19 A. For raising money for a specific task, 20 which was the double-keying of standards. 21 Double-keying of standards incorporated by 22 reference into law. 23 24 25 (PLAINTIFFS' EXHIBIT 27 WAS MARKED.) BY MR. HUDIS: Q. Mr. Malamud, I show you what has been Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 208 1 marked as Exhibit 27 bearing production pages 2 AERA_APA_NCME 31480 through 31485. 3 4 Have you seen this document before? A. It appears to be the posting I made on 5 Kickstarter for the double-key campaign I just 6 described to you. 7 8 Q. Do you have any reason to doubt its authenticity, Exhibit 27? 9 A. No. 10 Q. Now, it says at the top, Mr. Malamud, 11 "Funding unsuccessful. 12 was not reached on October 28th." 13 This project's funding goal Do you see that? 14 A. Yes, I do. 15 Q. October 28th of what year? 16 A. 2013. 17 Q. And it says below the picture, "We are 18 converting 28,040 public safety standards into 19 valid HTML files to make them freely accessible and 20 more usable." 21 22 23 24 25 Was that the reason you were seeking to raise funds through Kickstarter? MR. BECKER: Objection. The document speaks for itself. THE WITNESS: We were raising funds Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 209 1 specifically for the double-key operation of 2 documents. 3 BY MR. HUDIS: 4 Q. And further down on page 31480, it says, 5 "In the last two years we've posted 28,040 public 6 safety codes from around the world." 7 8 Did you mean codes, or did you mean standards? 9 10 MR. BECKER: Objection. The document speaks for itself. 11 THE WITNESS: 12 in this context. 13 The terms are interchangeable BY MR. HUDIS: 14 Q. And then it says, "We post all these 15 documents on Law.Resource.Org and make them 16 available on the Internet Archive." 17 Did you do that project in 2013? 18 MR. BECKER: 19 speaks for itself. 20 Objection. The document Lacks foundation. 21 Objection. THE WITNESS: Vague. Objection. And the answer is no, we 22 didn't do it in 2013. 23 last two years we've posted these standards." 24 So ... 25 BY MR. HUDIS: The paragraph says, "In the Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 210 1 Q. So you -- so you conducted that activity in 2 2011 -- in 2011 and 2012, you said the last two 3 years? 4 MR. BECKER: 5 speaks for itself. 6 Objection. The document testimony. 7 Objection. THE WITNESS: Misstates What I was saying there is 8 from the two-year period ending September 28th, 9 2013, which is the date that I published this blog 10 post, we had posted those documents. 11 BY MR. HUDIS: 12 Q. And then if you would please turn to the 13 text that spans from production pages 31482 to 14 31483. 15 At the bottom of 31482 it says, "Your help 16 matters. 17 possible." 18 Your support is what makes our work Do you see that? 19 A. Yes, I do. 20 Q. All right. And then on the next page, you 21 set to raise at least a hundred thousand dollars 22 for this Kickstarter campaign? 23 A. Kickstarter requires that you set a minimum 24 amount, and the minimum amount we set was a hundred 25 thousand dollars. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 211 1 2 Q. million dollars for this campaign? 3 4 And you were looking to raise up to 1.2 MR. BECKER: Objection. The document speaks for itself. 5 THE WITNESS: The way Kickstarter works is 6 you may get a lot more than the minimum, and it's 7 considered good form to say what you would do if 8 you happened to be wildly successful, which, of 9 course, we were not. 10 11 12 13 BY MR. HUDIS: Q. And what did the contributors get for their contribution to this campaign? A. So contributors to Kickstarter can, of 14 course, say they don't want anything, but at 15 different levels there are a different set of 16 prizes, I guess is the right word, equivalent to a 17 gift that NPR might give you in a pledging 18 campaign. 19 numbered 31481. 20 And those are listed on the page Bates MR. BECKER: I'd just like to state an 21 objection to the question for vague and misleading 22 to the extent it asks what did people get for this 23 campaign, their contributions to this campaign. 24 BY MR. HUDIS: 25 Q. Mr. Malamud, so the goal of this Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 212 1 Kickstarter campaign by Public.Resource was to 2 raise money so that Public.Resource could post 3 standards on the Internet and make them available 4 to Internet users for free? 5 MR. BECKER: 6 prior testimony. 7 Objection. May -- misstates BY MR. HUDIS: 8 Q. The document speaks for itself. 9 You may answer. MR. BECKER: Objection. 10 Objection. 11 facts not in evidence. 12 Compound. BY MR. HUDIS: Argumentative. Objection. Assumes 13 Q. Go ahead, Mr. Malamud. 14 A. The purpose of the campaign was to fund the 15 16 17 double-keying of the standards. Q. And what happened with those standards that were double-keyed? 18 19 MR. BECKER: Objection. 20 Objection. Misleading. Vague and ambiguous. THE WITNESS: None of those standards were 21 double-keyed as a result of this effort. 22 This was an unsuccessful effort. 23 nothing. 24 maintaining the Kickstarter campaign, but it was 25 unsuccessful. Right? This led to Except a tremendous amount of my time Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 213 1 2 BY MR. HUDIS: Q. Mr. Malamud, have you testified before 3 Congress regarding incorporation by reference 4 issues? 5 A. Yes, I -- 6 MR. BECKER: 7 THE WITNESS: 8 9 Vague. Yes, I have. BY MR. HUDIS: Q. 10 11 Objection. When was that? MR. BECKER: Objection. Vague and ambiguous. 12 THE WITNESS: Was it January 2014? I'm 13 assuming you have a set of my -- my testimony. 14 can probably tell me. 15 BY MR. HUDIS: You I know it was January. 16 Q. Of 2014? 17 A. I think it was '14, but I'm not certain 18 about that. 19 20 21 (PLAINTIFFS' EXHIBIT 28 WAS MARKED.) BY MR. HUDIS: Q. Mr. Malamud, I show you a document that's 22 been marked as Exhibit 28 bearing production 23 numbers AERA_APA_NCME 31208 through 31250. 24 25 Do you recognize the document? A. It's a badly mangled version of my Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 214 1 testimony, which was posted on our website. 2 MR. BECKER: Objection to the extent that 3 this document may have errors or other content in 4 it or may have -- otherwise be incorrectly 5 formatted. 6 BY MR. HUDIS: 7 8 Q. Do you have any reason to doubt that this document is authentic? 9 A. Yeah, it appears to be my testimony. 10 Q. Mr. Malamud, could you please turn to page 11 31215 of Exhibit 28. 12 A. Okay. 13 Q. And at the bottom it says, "In 2008 14 Public.Resource.Org began posting state-mandated 15 public safety codes. 16 developed by the SDOs had copyright restrictions, 17 we based our the actions on the ruling of the Veeck 18 case," and then you quote from it. 19 Although the model codes as My question is, here in 2008 were the text 20 of these model codes written into state laws or 21 were they incorporated by reference? 22 MR. BECKER: Objection. Relevance. 23 Objection. 24 ambiguous; may call for a legal conclusion; assumes 25 facts not in evidence; lacks foundation. Compound. Objection. Vague and Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 215 1 THE WITNESS: California Title 24 is a 2 publication of the State of California that 3 actually has the codes as part of the state 4 regulations. 5 reference into the CCR. 6 So it is not incorporated by Most states use the incorporation by 7 reference mechanisms. 8 question is both. 9 BY MR. HUDIS: 10 11 Q. So the answer to your Mr. Malamud, could you turn to page 31217 in Exhibit 28. 12 A. Okay. 13 Q. And in the second paragraph, second 14 sentence it says, "When SDOs have offered copies of 15 standards to read with or without a fee, that 16 access has come with significant limitations on 17 use, and SDOs have jealously guarded against the 18 right of anyone but themselves to communicate these 19 provisions to others." 20 Do you see that? 21 A. I do. 22 Q. When was the first time that you were aware 23 24 25 that an SDO had such a policy? MR. BECKER: Objection. Vague. Objection. Lacks foundation and assumes facts not in evidence. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 216 1 THE WITNESS: When I bought California 2 Title 24 and at the beginning there was a big 3 notice saying that I couldn't repeat this part of 4 the law because of what appeared to be copyright 5 assertions by the State of California. 6 BY MR. HUDIS: 7 Q. That was 2008? 8 A. I don't know when I bought Title 24, but I 9 posted it in 2008. 10 But shortly before that. Q. If you could turn to page 31218 in Exhibit 12 A. Okay. 13 Q. It says at the top, "In March 2012 11 28. 14 Public.Resource.Org began the process of making 15 available technical standards incorporated by 16 reference into the CFR." 17 Federal Regulations? That's the Code of 18 A. That's correct. 19 Q. At this time in March 2012, was 20 Public.Resource only providing these documents in 21 print? 22 MR. BECKER: Objection. Vague and 23 ambiguous; lacks foundation and assumes facts not 24 in evidence. 25 THE WITNESS: In March 2012 we made 25 Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 217 1 copies of 73 carefully selected standards and 2 mailed them, FedEx, actually, to ten standards 3 organizations, seven government officials and asked 4 for their comment on a whole series of issues that 5 were raised by the lack of availability of the law. 6 BY MR. HUDIS: 7 Q. And continuing in that same paragraph, 8 towards the end it says, and I realize I'm starting 9 mid sentence, "In May 2012 we began the process of 10 posting these standards on our website. 11 posted a total of 969 standards that are required 12 by federal law." 13 We have My question is, as of today, May 2015, how 14 many standards incorporated into law have you 15 posted on Public.Resource's website? 16 MR. BECKER: I'll restate the objection 17 that this is beyond the 30(b)(6) designation. 18 I will object to the extent that it calls for a 19 legal conclusion. 20 evidence. 21 And that it assumes facts not in And lacks foundation. THE WITNESS: Is your question federal law? 22 Because that's what this statement was in the 23 testimony. 24 BY MR. HUDIS: 25 Q. And Yes. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 218 1 A. I believe there's approximately 1,020 2 standards incorporated by reference into the CFR on 3 the Law.Resource.Org website. 4 guess based on the number of PDF files in that 5 particular directory. 6 number. 7 8 Q. And that number is a So it may be a different Mr. Malamud, could you turn to page 31222 of Exhibit 28. 9 A. Okay. 10 Q. In the first paragraph on that page the 11 last sentence it says, "Standards incorporated by 12 reference have the force of law and are no 13 different than text authored" -- or -- "authored 14 directly by the government." 15 Do you see that? 16 A. I do. 17 Q. What is the basis for that statement? 18 19 MR. BECKER: Objection. Calls for a legal conclusion. 20 THE WITNESS: One basis for that statement 21 is a speech Mr. Bhatia made, which was quoted on 22 the ANSI website that said standards incorporated 23 by reference into law are the law. 24 BY MR. HUDIS: 25 Q. Very clear. What other basis do you have for making Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 219 1 2 that statement? A. There are several bases. One is the 3 compendium of copyright office procedures, both the 4 second and the third edition published by the U.S. 5 copyright Office, which has a strong statement 6 about edicts of government, that the law must be 7 available and has no copyright. 8 The creation of the Federal Register and 9 the Code of Federal Regulations contains a great 10 deal of legislative history and language about how 11 the purpose of the official journals of government 12 is to make the law available to people, and how 13 standards incorporated by reference into the code 14 are part and parcel of the Code of Federal 15 Regulations. 16 the actual document. 17 They are as if they are contained in MR. BECKER: I'd like to state a further 18 objection to this line of testimony in that 19 Mr. Malamud has been designated as a 30(b)(6) 20 representative for factual bases for issues such as 21 these, but not for any legal bases. 22 THE WITNESS: Yes. And I want to be very 23 clear. 24 reading of -- I've read quite a bit about this 25 subject, but I'm not a professional in this field. I am not a lawyer. This is based on my Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 220 1 But I have read court opinions and other documents 2 and this is my -- my assessment as a layman of 3 these materials. 4 BY MR. HUDIS: 5 Q. Could you turn to page 31223 of Exhibit 28. 6 A. Yes. 7 Q. And I am directing you to the second full 8 paragraph where it starts, "Reading the law." 9 Do you see that? 10 A. I do. 11 Q. And it says in the second sentence, 12 "Activities that our organization undertakes, such 13 as putting all the standards required by law in one 14 location with common access methods or rekeying the 15 texts in order to make them searchable and 16 available on new platforms, are purportedly 17 prohibited under this scheme." 18 Do you see that? 19 A. I do. 20 Q. To what scheme were you referring? 21 MR. BECKER: Objection. The document 22 speaks to itself -- excuse me. 23 document speaks for itself. 24 foundation and assumes facts not in evidence. 25 THE WITNESS: Objection. Objection. The Lacks If you go two paragraphs Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 221 1 back, the paragraph beginning on Bates number 31222 2 and ending at the top of 31223, you'll see that my 3 testimony describes the concept of the legal 4 reading room in which standards development 5 organizations have recently begun posting read-only 6 copies of standards with restricted functionality 7 such as no printing, terms of use, license 8 agreements and a variety of other restrictions 9 that. 10 BY MR. HUDIS: 11 Q. 12 referring? 13 A. The legal reading room scheme, yes. 14 Q. Mr. Malamud, on page 31227 of Exhibit 28, And that was the scheme to which you were 15 it says at the bottom, "As this committee considers 16 revisions to the Copyright Act, there is one simple 17 change that would make a world of difference to the 18 functioning of our system of government, which is 19 to specify, as the Copyright Office stated, that 20 edicts of government are not copyrightable for 21 reasons of public policy." 22 Do you see that? 23 A. I do. 24 Q. Has this suggested text ever been enacted 25 as part of the U.S. Copyright Act, to the best of Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 222 1 your knowledge? 2 3 MR. BECKER: Objection. Calls for a legal conclusion. 4 THE WITNESS: This was January 2014 5 testimony. 6 a two-year process of revision of the Copyright 7 Act, and that -- that process is currently 8 underway. 9 of that examination by the chairman. 10 11 Chairman Goodlatte has been undergoing This testimony was invited as -- as part BY MR. HUDIS: Q. As you and I sit here today in May of 2015, 12 has the language, "edicts of government are not 13 copyrightable for reasons of public policy," been 14 enacted into the U.S. Copyright Act? 15 MR. BECKER: Objection. Calls for a legal 16 conclusion. 17 foundation; assumes facts not in evidence. 18 Objection. 19 Objection. Argumentative; lacks Competence. THE WITNESS: There was a long-standing 20 public policy, and that's what the Copyright Office 21 was talking about. 22 statute passed in the last couple years that deals 23 specifically with this topic. 24 25 There has not been a U.S. I believe, however, that if one looks carefully at the mechanisms of incorporation by Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 223 1 reference that are specified in statutes such as 2 the APA, at least it's my reading, again, as an 3 amateur, that the policy is that the law must be 4 available and that that would include standards 5 that are incorporated by reference. 6 BY MR. HUDIS: 7 8 Q. Thank you, Doc -- thank you, Mr. Malamud, but that does not answer my question. 9 My question is, yes or no, has the 10 language, "as of today edicts of government are not 11 copyrightable for reasons of public policy," been 12 enacted into the U.S. Copyright Act? 13 MR. BECKER: 14 asked and answered. 15 THE WITNESS: All the same objections and I did answer your question. 16 I said that there had not been a statute in the 17 last two years that -- that included -- in the 18 Copyright Act that included this phrase. 19 BY MR. HUDIS: 20 Q. Mr. Malamud, generally what do you know 21 about the American Educational Research 22 Association? 23 MR. BECKER: 24 THE WITNESS: 25 amount. Objection. Vague. Oh, I don't know a huge I know they're suing me. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 224 1 BY MR. HUDIS: 2 Q. Besides that. 3 A. I've looked at their website briefly, 4 particularly after the litigation commenced, to 5 learn a little bit more about their activities. 6 Q. Do you know what they do? 7 MR. BECKER: 8 THE WITNESS: 9 Objection. Vague. They hold meetings. just had their annual meetings. They They had all sorts 10 of what appeared to be very interesting talks about 11 education. 12 their membership is my impression, but again, I 13 don't know the organization very well. 14 advocate for more money flowing to research and 15 education, a noble cause. 16 BY MR. HUDIS: 17 18 Q. But they What do you know about the American Psychological Association? 19 20 They lobby for education funding to MR. BECKER: Objection. Vague; calls for a narrative. 21 THE WITNESS: Oh, I know a little bit about 22 the APA. 23 did an internship with the National Association of 24 Private Psychiatric Hospitals, and as part of that 25 I spent a few months in Washington and attended When I was in -- sophomore in college I Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 225 1 some APA functions. 2 bit about what -- what they did and how they did 3 it. 4 BY MR. HUDIS: 5 6 Q. What do you know about the National Council on Measurement and Education? 7 8 MR. BECKER: 11 12 Objection. Vague; calls for a narrative. 9 10 So I -- I got to see a little THE WITNESS: Almost nothing. BY MR. HUDIS: Q. Do you know what kind of work the AERA does? 13 MR. BECKER: 14 THE WITNESS: Objection. Vague. Well, I know one piece of 15 work they do, which is they coordinate and publish 16 the Standards for Educational and Psychological 17 Testing. 18 BY MR. HUDIS: 19 Q. Do you know what kind of work the APA does? 20 MR. BECKER: 21 THE WITNESS: Objection. Vague. I know they're a very large 22 organization that is involved in a number of 23 things. 24 the torture program, for example. 25 that from news reports. I recently read about their involvement in So I know about Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 226 1 BY MR. HUDIS: 2 Q. 3 NCME does? What do you know about the work that the 4 MR. BECKER: 5 THE WITNESS: 6 the organization. 7 Objection. Vague. Nothing beyond the name of BY MR. HUDIS: 8 9 Q. Measurement education. Besides the standards that we are discussing today, do you know anything about the 10 publications of either the AERA, the APA or the 11 NCME? 12 13 MR. BECKER: Objection. Vague; calls for a narrative. 14 THE WITNESS: I briefly looked at the AERA 15 bookstore and saw a listing of the various 16 publications that they did, but they don't mean 17 much to me. 18 BY MR. HUDIS: 19 Q. Did you look at the APA bookstore? 20 MR. BECKER: 21 THE WITNESS: Same objections. I did, looking for the 22 standards at issue, and found that they were not 23 available on the APA bookstore, and that brought me 24 over to the AERA bookstore. 25 of that examination. So that was the extent Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 227 1 MR. HUDIS: Just for the benefit of the 2 court reporter, AERA is A-E-R-A. 3 BY MR. HUDIS: 4 5 Q. MR. BECKER: Objection. Vague; calls for a narrative. 8 9 What do you know about the Standards for Educational and Psychological Testing? 6 7 Good. To the extent that any of the witness's knowledge comes from attorney-client 10 communications, I'll instruct him not to answer, 11 with that particular knowledge. 12 Lacks foundation. 13 THE WITNESS: So I'm not an expert in this 14 area, but the standards at issue are standards that 15 specify how to create tests that are valid and 16 fair. 17 tests that are used in a variety of applications. 18 BY MR. HUDIS: 19 Q. So it is a standard for the creation of What is your understanding of who prepared 20 the standards? 21 question. 22 All right. So withdraw the When I refer from now on to "the 23 standards," I am referring to the Standards for 24 Educational and Psychological Testing. 25 okay? Alderson Reporting Company 1-800-FOR-DEPO Is that Carl Malamud May 12, 2015 San Francisco, CA Page 228 1 A. The 1999 version, or just in general? 2 Q. I will specify. 3 A. Okay. 4 Q. But so we have an understanding between the 5 two of us, if I refer to "the standards," it's the 6 Standards for Educational and Psychological 7 Testing. 8 A. I'm fine with that. 9 Q. Do you know who prepared the standards? 10 11 12 MR. BECKER: Objection. Vague. Objection. May call for a legal conclusion. To the extent that the answer to this 13 question requires the witness to divulge any 14 attorney-client confidential information, I will -- 15 I will instruct the witness not to divulge that 16 privileged information. 17 18 19 Assumes facts not in evidence and lacks foundation. THE WITNESS: So I know there was a 20 committee involved in the preparation of the 21 standards. 22 '85, '99 and 2014. 23 It appears all three of the editions, My impression is that there were a large 24 number of other individuals in the three 25 organizations and others involved as well in this Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 229 1 process. 2 BY MR. HUDIS: 3 Q. 4 5 Do you know who publishes the standards? MR. BECKER: Objection. Calls for a legal conclusion. 6 Objection to the extent that the witness 7 has learned this information from -- through 8 attorney-client privileged communications, I'll 9 instruct the witness not to divulge that 10 information. 11 THE WITNESS: I believe it's AERA and the 12 other two organizations are the ones certainly that 13 are claiming to be the publisher and owner of the 14 copyright, hence the litigation that we're 15 currently engaged in. 16 BY MR. HUDIS: 17 Q. Do you know the purpose of the standards? 18 MR. BECKER: 19 THE WITNESS: Objection. Yeah. Vague. It's what we recently 20 discussed, the creation of fair and accurate and 21 valid tests that are used in a variety of 22 applications. 23 BY MR. HUDIS: 24 25 Q. And are you familiar with how the standards are updated over time? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 230 1 MR. BECKER: 2 Objection. Objection. Vague. To the extent that any of this 3 information has come from attorney-client 4 communications, I will instruct the witness not to 5 divulge any privileged information. 6 THE WITNESS: I'm aware that they are 7 updated. 8 process that the organizations went through to do 9 that. 10 11 I'm not terribly clear on the exact BY MR. HUDIS: Q. Do you know who uses the standards? 12 MR. BECKER: 13 Again, to the extent that this answer 14 requires the divulging of any attorney-client 15 privileged communications, I'll instruct the 16 witness not to divulge that information. 17 Competence. 18 THE WITNESS: Objection. Vague. Lacks foundation. So I know some of the people 19 that use the standard. 20 of Education has incorporated by reference into its 21 regulations. 22 of Education has people that use it. 23 I know that the Department So I am -- I know that the Department I know a lot of state governments are 24 putting together tests that conform to the 25 standards. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 231 1 I believe there are a number of other 2 agencies, I believe Office of Personnel Management, 3 I believe Department of Defense, a number of state 4 organizations, are all users of the standard 5 because they specify that it shall be used. 6 BY MR. HUDIS: 7 8 Q. of the standards? 9 10 Do you know of any non-governmental users MR. BECKER: All the same objections. Vague. 11 To the extent that there is any information 12 that the witness has learned from his attorneys, I 13 will instruct him not to divulge this privileged 14 information. 15 THE WITNESS: I know that the Educational 16 Testing Service, ETS and a number of organizations 17 that create tests, are users of the standard, and 18 the reason I know that is there's been a series of 19 procurements by government organizations that 20 require the use of the standard. 21 BY MR. HUDIS: 22 23 24 25 Q. Do you know of any other non-governmental users of the standards? MR. BECKER: All the same objections. object for competence. Alderson Reporting Company 1-800-FOR-DEPO Also Carl Malamud May 12, 2015 San Francisco, CA Page 232 1 THE WITNESS: My sister read it in the 2 course of her doctoral course work. 3 BY MR. HUDIS: 4 5 6 Q. And what was your sister's doctoral course work? A. On, I want to state this properly. I 7 believe physical and rehabilitative therapy. 8 subset of psychology. 9 Q. 10 A attention? 11 How did the standards first come to your 12 MR. BECKER: Objection. Vague. Objection. Ambiguous. 13 THE WITNESS: I was looking at the 14 standards incorporated by reference under the Code 15 of Federal Regulations, and the standards at issue 16 were one of the ones that were specified. 17 BY MR. HUDIS: 18 Q. And what year was that? 19 A. Probably 2012. 20 Q. When did Public.Resource -- 21 A. Might have been earlier. 22 earlier. Early 2012. Might have been I'm not sure. 23 Q. Sometime in 20 -- in 2012? 24 A. Coming to my attention in the sense of 25 remembering it now, yes. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 233 1 2 3 Q. What, if anything, made you interested in acquiring the standards? A. It was -- 4 MR. BECKER: 5 THE WITNESS: Objection. Vague. -- incorporated by reference 6 into the Code of Federal Regulations. 7 BY MR. HUDIS: 8 9 10 Q. When did Public.Resource first make the decision to post the standards to one of its websites? 11 MR. BECKER: 12 Lacks foundation. 13 Objection. Vague. Objection. conclusion. 14 Objection. THE WITNESS: May call for a legal So it would have been 15 sometime after obtaining a copy of the standard and 16 examining it and satisfying myself that, in fact, 17 it was the document that was incorporated by 18 reference, and sometime between the procurement, 19 which I believe was in May 2012, and the actual 20 posting, which I believe was in July 2012. 21 BY MR. HUDIS: 22 Q. So how did Public.Resource come to the 23 decision to post the standards on one of its 24 websites? 25 MR. BECKER: Objection. Vague and Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 234 1 ambiguous. 2 THE WITNESS: By determining that it was 3 incorporated by reference and that this particular 4 document that I held in my hand was the specific 5 document that had been incorporated by reference. 6 BY MR. HUDIS: 7 8 Q. On which of its websites did Public.Resource post the standards? 9 A. Law.Resource.Org. 10 Q. Mr. Malamud, this question is directed to 11 you personally. 12 Do you claim any copyright ownership 13 interest in the Standards for Educational and 14 Psychological Testing? 15 MR. BECKER: Objection. 16 conclusion. 17 Calls for a legal foundation; competence. 18 19 20 Objection. THE WITNESS: Argumentative; lacks I do not. BY MR. HUDIS: Q. Does Public.Resource claim any copyright 21 ownership interest in the Standards for Educational 22 and Psychological Testing? 23 MR. BECKER: 24 THE WITNESS: 25 All the same objections. We do not. We do not. BY MR. HUDIS: Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 235 1 Q. When did you first procure the standards? 2 A. May 2012. 3 Q. What was the year of the publication of the 4 particular standards that you procured? 5 6 MR. BECKER: Objection. Vague; assumes facts not in evidence. 7 THE WITNESS: 8 publication. 9 I don't know the year of the BY MR. HUDIS: 10 Q. 11 12 13 I know it's a 1999 edition. That's what I wanted to know. Thank you. Have you procured any earlier or subsequent versions of the standards? A. Subsequent to the commencement of 14 litigation, I purchased a copy of the 2014 and 1985 15 standards because I wanted to see what was in them. 16 I have not posted those documents. 17 18 Q. Mr. Malamud, did you personally procure the 1999 standards? 19 A. I did. 20 Q. From -- from what source did you procure 21 22 the 1999 standards? A. It's -- 23 MR. BECKER: 24 THE WITNESS: 25 Marketplace. Objection. Vague. It's called the Amazon So I paid my money to Amazon, and Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 236 1 that was through a used book seller that actually 2 had the document and sent it to me. 3 4 5 (PLAINTIFFS' EXHIBIT 29 WAS MARKED.) BY MR. HUDIS: Q. I marked the next document as Exhibit 29, 6 and it is Defendant's Amended Responses to 7 Plaintiff's Interrogatories. 8 9 Mr. Malamud, do you recognize this document? 10 A. I do. 11 Q. Mr. Malamud, if you could turn to the last 12 page. On page 15, is that your signature? 13 A. Yes, it is. 14 Q. Mr. Malamud, could you please turn to the 15 question and answer to interrogatory number 1 on 16 page 4 of Exhibit 29. 17 A. I'm there. 18 Q. And it says in the third paragraph of that 19 interrogatory answer, "Public.Resource purchased a 20 printed copy from," quote, "The Book Grove," 21 unquote, "a used book seller on May 17, 2012." 22 And does this interrogatory answer verify 23 the source from which you procured the 1999 24 standards? 25 A. Yes. The Book Grove was the used book Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 237 1 2 3 seller on the Amazon marketplace. Q. And does interrogatory answer number 1 also state the date of purchase? 4 A. It does. 5 Q. And that date is May 17th, 2012? 6 A. That is correct. 7 8 MR. BECKER: 11 12 The interrogatory speaks for itself. 9 10 Objection. (PLAINTIFFS' EXHIBIT 30 WAS MARKED.) BY MR. HUDIS: Q. Mr. Malamud, have you taken the time to read what has now been marked as Exhibit 30? 13 A. I have. 14 Q. And the document Exhibit 30 bears 15 production pages PROAERA 446 through 5 -- 16 through -- well -- 17 18 19 20 A. 446. MR. HUDIS: PROAERA 446, PROAERA 447 and PROAERA 544. Counsel, just so we have an understanding, 21 this is a part of a much larger document of many 22 other purchases that Carl Malamud made. 23 only concentrating on a specific purchase. 24 25 THE WITNESS: We are I don't have 544 here. have two pages. Alderson Reporting Company 1-800-FOR-DEPO I Carl Malamud May 12, 2015 San Francisco, CA Page 238 1 2 BY MR. HUDIS: Q. Okay. So my colleague, Ms. Cappaert, has 3 told me that I've misspoken. 4 re-identify the document. 5 6 So I'm going to Exhibit number 30 should contain production pages PROAERA 446 and 447. 7 A. That's correct. 8 Q. I apologize, Mr. Malamud. 9 error. 10 A. Oh, that's okay. 11 Q. Okay. That was my So, Mr. Malamud, if you could take a 12 look at the document. 13 this document is authentic? 14 A. 15 Do you have any doubt that No, I do not. MR. HUDIS: Counsel, can you stipulate that 16 Exhibit 30 is a business record of 17 Public.Resource? 18 19 MR. BECKER: It appears to be a document produced by Public.Resource that is a receipt. 20 MR. HUDIS: 21 Thank you. 22 I'll take that representation. BY MR. HUDIS: 23 Q. Mr. Malamud, Exhibit 30, is this the 24 receipt for the 1999 standards book that you 25 purchased? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 239 1 A. Yes, it is. 2 Q. And for what purpose did you procure the 3 4 1999 standards? A. To look at the document and ascertain that 5 it was, in fact, the document incorporated by 6 reference into the Code of Federal Regulations. 7 8 9 (PLAINTIFFS' EXHIBIT 31 WAS MARKED.) BY MR. HUDIS: Q. Mr. Malamud, I show you what's been marked 10 as Exhibit 31. 11 AERA_APA_NCME 1 through 201. It bears production numbers 12 A. Do you want me to read the document? 13 Q. No, I do not. 14 A. Okay. 15 Q. Mr. Malamud, is this the book that you 16 purchased from The Book Grove on May 17, 2012? 17 MR. BECKER: Objection. Vague. Objection. 18 The witness has been instructed not to read the 19 document. 20 BY MR. HUDIS: Objection. Misleading. 21 Q. Mr. -- 22 A. I don't know if this is the one that I 23 bought, but this appears to be a copy of the 24 standards at issue. 25 Q. Did you buy the standards at issue from the Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 240 1 Book Grove? 2 A. Yes. 3 Q. Mr. Malamud, according to Exhibit 30, you 4 paid $64.48 for the book plus shipping and 5 handling. 6 7 8 9 A. 68.47, including shipping and handling, Q. Mr. Malamud, did you ever attempt to yes. acquire a copy of the 1999 standards for free? 10 A. I think the answer to that is yes. 11 Q. From where? 12 A. See, I'm not sure "free" is the right term. 13 I submitted a Freedom of Information Act request 14 that included the standards at issue. 15 was denied. 16 been a charge or not in making that data available. 17 So that's a qualified yes. 18 19 20 That request So I have no idea if there would have (PLAINTIFFS' EXHIBIT 32 WAS MARKED.) BY MR. HUDIS: Q. Mr. Malamud, I show you what's been marked 21 as Exhibit 32 bearing pro -- pages PROAERA 10153 22 through 10195. 23 24 25 Do you recognize the document? A. It appears to be a Freedom of Information Act request I submitted to Mr. Stern, who is the Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 241 1 2 3 general counsel of the National Archives. Q. Is the National Archives and Records Administration also known as NARA, N-A-R-A? 4 A. Yes, it is. 5 Q. And this letter of July 14th, 2009, Exhibit 6 32, this was a freedom of information request by 7 Public.Resource? 8 A. 9 10 Yes, it was. MR. HUDIS: Counsel, can you stipulate that Exhibit 32 is a business record of Public.Resource? 11 MR. BECKER: I'm not certain if it 12 constitutes a business record by Public.Resource, 13 but it is a document produced by Public.Resource. 14 BY MR. HUDIS: 15 16 Q. Mr. Malamud, so was this document, Exhibit 32, created on or about July 14th, 2009? 17 A. It's when I sent it, it is. 18 Q. Have you kept a copy of Exhibit 32 in 19 Public.Resource's records? 20 A. Yes, we disclosed it to you. 21 Q. And writing such letters such as Exhibit 32 22 is the regular practice of Public.Resource? 23 MR. BECKER: 24 THE WITNESS: 25 Objection. Vague. I don't know about regular practice, but it was certainly not unusual for me Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 242 1 to write a letter. 2 BY MR. HUDIS: 3 Q. A letter like this, Exhibit 32? 4 A. Well, that particular FOIA request was 5 fairly unique at the time, and I don't believe we 6 did that again for quite a while. So ... 7 Q. You've done it on more than one occasion? 8 A. FOIA requests? 9 Q. Yes. 10 A. Oh, yeah, I've submitted a lot of FOIA 11 12 13 14 requests over time. Q. And that's part of what you do during your business at Public.Resource? A. If -- if there is a reason to request 15 government information that is not otherwise 16 available, yes. 17 18 19 20 21 22 Q. What types of materials were you attempting to obtain by this FOIA request of Exhibit 32? A. Standards incorporated by reference into the Code of Federal Regulations. Q. Mr. Malamud, could you turn to production page 10154 of Exhibit 32. 23 A. Okay. 24 Q. Do you see the text under "What I am 25 specifically asking for"? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 243 1 A. I do. 2 Q. So reading this first paragraph and its 3 bullet points that follow, were you asking 4 Mr. Stern that either the government post these 5 items to the Internet or allow Public.Resource to 6 do it? 7 MR. BECKER: 8 ambiguous. 9 Objection. Vague and Possibly compound. 10 The document speaks for itself. THE WITNESS: I outlined three different 11 ways that the FOIA request could be satisfied. 12 BY MR. HUDIS: 13 Q. And in the next paragraph you say, "I am 14 particularly interested in technical standards for 15 Underwriters Laboratories, the American National 16 Standards Institute and other standards that are 17 expensive and unavailable on the Internet and in 18 public libraries." 19 Do you see that? 20 A. I do. 21 Q. Would you consider the 1999 standards to be 22 expensive? 23 24 25 MR. BECKER: Objection. Vague. Objection. Lacks foundation; assumes facts not in evidence. THE WITNESS: I think a $50 document is Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 244 1 expensive. 2 another question. 3 money. 4 BY MR. HUDIS: 5 6 Q. Whether it's unduly expensive is But I think $50 is a lot of Do you think the price for which you paid for the standards, to be unduly expensive? 7 A. Of this particular standard? 8 Q. Yes. 9 A. Well, I guess it's by comparison to what? 10 And who was doing the purchasing; right? So -- 11 Q. While you were doing the purchasing? 12 A. I was doing the purchasing, and I have 13 spent considerable funds purchasing standards that 14 are much more expensive, and so by comparison to 15 the Underwriters Laboratory $800 price, 50 is 16 certainly less. 17 18 I do think that's a lot of money though. Q. And on page 10155 of Exhibit 32, you were 19 requesting a public-interest fee waiver. 20 see that? 21 A. I do. 22 Q. All right. Do you So by this public-interest fee 23 waiver, were you asking NARA to provide the 24 standards, whose list is attached at the back of 25 Exhibit 32, to Public.Resource for free? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 245 1 MR. BECKER: Objection. The document 2 speaks for itself; assumes facts not in evidence 3 and lacks foundation. 4 THE WITNESS: That's a standard mechanism 5 in a FOIA request is if the request is in the 6 public interest, to request a fee waiver and yes, 7 we did, in fact, request one. 8 BY MR. HUDIS: 9 10 11 Q. So you were asking for NARA to provide copies of these standards for free? A. Well, no. We were asking for a 12 public-interest fee waiver, and it's up to the 13 government to decide if they're going to waive all 14 or some of the fees. 15 16 MR. BECKER: Let me just say, give me a moment to object. 17 THE WITNESS: 18 MR. BECKER: Sorry about that. All the same objections and 19 also asked and answered and mischaracterizes 20 testimony. 21 BY MR. HUDIS: 22 23 Q. Mr. Malamud, could you look at production page 10156 of Exhibit 32. 24 A. Okay. 25 Q. Up at the top of the page it says in the Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 246 1 first bullet point, "Public.Resource.Org maintains 2 one of the most popular and visible document 3 servers on the Internet for legal information and 4 have demonstrated public expertise to disseminate 5 this information to a broad spectrum of the 6 public." 7 8 What was the basis for you making that statement? 9 10 MR. BECKER: document. 11 Objection. Misquotes the The document speaks for itself. THE WITNESS: Vague. It's based on the fact that 12 we were at the time serving the opinions of the 13 court of appeals of the United States, which were 14 unavailable in any other location on the Internet, 15 and the service was very popular. 16 BY MR. HUDIS: 17 Q. And what did you mean by "very popular"? 18 A. When I would go to a conference, a lot of 19 people would come up to me and say, "This is really 20 great that the court of appeal opinions are 21 available on the Internet." 22 Q. Mr. Malamud, could you look at page 10157 23 of Exhibit 32. 24 "Given the lack of any specific regulations 25 governing disclosure of materials incorporated by At the top of that page it says, Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 247 1 reference, given the importance of these core 2 materials, and given the clear unqualified language 3 of the president, NARA should disclose this 4 material." 5 Do you see that? 6 A. I do. 7 Q. All right. 8 I'm concentrating on just the first part of that sentence. 9 What is the basis for saying "there is a 10 lack of any specific regulations concerning 11 disclosure of materials incorporated by reference"? 12 MR. BECKER: Objection. The document 13 speaks for itself; calls for speculation; 14 competence; assumes facts not in evidence. 15 THE WITNESS: I meant that the Office of 16 the Federal Register on their website had taken -- 17 not addressed the issue of public availability of 18 these -- these documents. 19 BY MR. HUDIS: 20 Q. "These documents," meaning what, standards? 21 A. The standards incorporated by reference 22 23 under the Code of Federal Regulations. Q. Mr. Malamud, attached to the letter of 24 Exhibit 32 is an appendix. 25 appendix of? What is this an Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 248 1 2 MR. BECKER: Objection. The document speaks for itself. 3 THE WITNESS: It is a listing of standards 4 incorporated by reference, which I obtained by 5 looking at the National Institute of Standards and 6 Technology database of standards incorporated by 7 reference. 8 BY MR. HUDIS: 9 10 Q. Public.Resource was asking NARA to provide? 11 12 And was this a list of standards that MR. BECKER: Objection. The document speaks for itself. 13 THE WITNESS: Yes. This is standards 14 incorporated by reference, and this was a FOIA 15 request for all standards incorporated by 16 reference. 17 BY MR. HUDIS: 18 Q. And you were asking that NARA provide these 19 standards incorporation by reference pursuant to a 20 fee waiver? 21 MR. BECKER: Objection. The document 22 speaks for itself; mischaracterizes -- potentially 23 mischaracterizes prior testimony. 24 25 THE WITNESS: There was a fee waiver, but there was also an offer to pay funds as well. Alderson Reporting Company 1-800-FOR-DEPO So Carl Malamud May 12, 2015 San Francisco, CA Page 249 1 there was -- this is a standard FOIA request in 2 which you say, "I'm willing to pay a certain amount 3 of money. 4 money, please contact me." 5 also in the public interest. 6 BY MR. HUDIS: If it costs more than that amount of And by the way, this is 7 Q. Where in -- 8 A. On Bates number 10156, the section 9 limitation of fees. "If you decide that we qualify 10 neither as news media or for a public interest fee 11 waiver, we agree to pay fees up to a maximum of 12 $5,000. 13 on to say, "please provide a partial response with 14 $5,000 worth of documents." 15 16 Q. So you were willing to pay up to $5,000 to procure the standards listed on appendix A? 17 18 If $5,000 is not sufficient," and it goes MR. BECKER: Objection. Mischaracterizes prior testimony; vague and ambiguous; misleading. 19 THE WITNESS: It says "$5,000 worth of 20 documents." 21 end up being, we don't know. 22 grant the FOIA request -- NARA didn't grant the 23 FOIA request, it's really moot. 24 BY MR. HUDIS: 25 Q. So as to how many documents that would And since FOIA didn't And on page 10167 of Exhibit 32, is the Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 250 1 1999 edition of the standards one of the documents 2 you were asking NARA for? 3 4 MR. BECKER: Objection. The document speaks for itself. 5 THE WITNESS: 6 Is that the right number? 7 10167? BY MR. HUDIS: 8 Q. Yes, sir. 9 A. Because I'm not seeing a 10167. I'm 10 looking here to see if it's someplace else. 11 you direct me to where on that page? Can 12 Q. It's the equivalent of appendix A, page 10. 13 A. I'm on that page. 14 I'm sorry. 15 Q. Do you see -- 16 A. I see a bunch of ANSI. 17 Q. Keep going. 18 A. AOAC, the officials methods. I'm just not seeing it. I may be missing it. APA. 19 see. 20 NIST database listed it under the American 21 Psychological Association. 22 Oh, I fact, see the standards at issue here. 23 It's listed under APA. Q. All right. That's because the Yes, I do see -- in So just so we have a clean 24 record, and on page 10167 of Exhibit 32, is the 25 1999 edition of the standards one of the documents Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 251 1 you were asking NARA for? 2 MR. BECKER: Objection. Misstates prior 3 testimony; the document speaks for itself; asked 4 and answered; vague. 5 THE WITNESS: The standards at issue are, 6 in fact, listed on page 10 of appendix A of my FOIA 7 request. 8 BY MR. HUDIS: 9 10 Q. Which is the equivalent of production page -- 11 A. 10167. 12 Q. Thank you, sir. 13 14 15 (PLAINTIFFS' EXHIBIT 33 WAS MARKED.) BY MR. HUDIS: Q. So, Mr. Malamud, I show you Exhibit 33, 16 which has been -- Exhibit 33, which bears 17 production numbers PROAERA 10247 through 10249. 18 19 20 21 22 Do you recognize the document? A. It appears to be the response from the Office of the Federal Register to my FOIA request. Q. So Exhibit 33 is the response to your letter of Exhibit 32? 23 A. Yes. 24 Q. Do you have any reason to doubt the 25 authenticity of Exhibit 33? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 252 1 A. I do not. 2 Q. Mr. Malamud, I'm looking now at 3 Mr. Mosley's letter of Exhibit 33. 4 attention to the third paragraph, the last sentence 5 in that paragraph. 6 And I draw your "While the standards themselves are not set 7 out in their entirety in the CFR text, there was 8 enough information set out in the regulation text 9 that affected parties can obtain or inspect these 10 standards in order to comply with the regulation." 11 12 Do you agree with that statement, with respect to the 1999 standards? 13 14 MR. BECKER: Objection. Potentially seeks legal conclusion; argumentative; lacks foundation. 15 THE WITNESS: No, I do not believe that 16 there is enough information set out in the CFR 17 text. 18 standards at issue in order to understand what they 19 specify. 20 21 22 23 24 25 I believe one would need to consult the MR. BECKER: I'm sorry, are we going off the record? MR. HUDIS: He has to. We've got five minutes left. THE VIDEOGRAPHER: This marks the end of Disc 3, Volume 1 in the deposition of Carl Malamud. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 253 1 The time is 4:23 and we are off the record. 2 (Recess taken.) 3 THE VIDEOGRAPHER: This marks the beginning 4 of Disc 4, Volume 1 in the deposition of Carl 5 Malamud. 6 7 8 9 The time is 4:33, and we are on the record. BY MR. HUDIS: Q. Mr. Malamud, I'm referring you to Exhibit 33, page 10247 at the bottom. And in his letter to 10 you, Mr. Mosley says, "Contrary to your 11 suggestions, there is no federal law, regulation or 12 presidential memorandum that requires the standards 13 incorporated by reference to be set out in full 14 text in the CFR or posted verbatim on the National 15 Archives and Records Administration, NARA, 16 website." 17 18 Mr. Malamud, do you agree or disagree with that statement? 19 A. I disagree with that statement. 20 Q. Why? 21 A. There are certainly a series of 22 presidential memoranda having to do with the 23 availability of government information. 24 Obama has been extremely aggressive in his 25 open-government platform in a series of memoranda Alderson Reporting Company 1-800-FOR-DEPO President Carl Malamud May 12, 2015 San Francisco, CA Page 254 1 on availability of documents. 2 In terms of federal law, I believe very 3 strongly that it is a long-standing public policy 4 in the United States that the law has no copyright. 5 That goes back to the decision of Wheaton v. 6 Peters. 7 8 Again, I'm not a lawyer, but I have read fairly extensively on this very specific topic, and 9 I believe if you look at everything from 10 supreme court decisions to U.S. Copyright Office 11 policy, it's very clear that the law has no 12 copyright and must be available to citizens to 13 inform themselves as to their rights and their 14 obligations. 15 Q. Another comment that -- or another 16 statement that Mr. Mosley made in his letter of 17 Exhibit 33, you already said you disagreed with. 18 "There is enough information set out in the 19 regulation text that affected -- that affected 20 parties can obtain or inspect these standards in 21 order to comply with the regulation." 22 23 And you said you disagreed with that; correct? 24 A. That is correct. 25 Q. Why do you disagree with that statement? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 255 1 2 MR. BECKER: Objection to the extent that calls for a legal conclusion. 3 THE WITNESS: Because I believe the 4 standards incorporated by reference are integral 5 parts of the documents, of the Code of Federal 6 Regulations. 7 Federal Regulations based on a very brief summary. 8 One needs to actually read the text. 9 BY MR. HUDIS: 10 Q. And one cannot understand the Code of That's not what Mr. Mosley is saying here. 11 He says that "There is enough information set out 12 in the regulation text that affected parties can 13 obtain or inspect these standards in order to 14 comply with the regulation." 15 A. 16 difficult. 17 restrictions on use. 18 facility provided by the National Archives and 19 the -- the regulatory agencies doing the 20 incorporation, are not nearly adequate. 21 I believe the provisions to obtain them are They involve high costs and I believe the inspection One has to travel to Washington D.C. with a 22 roll of quarters in your pocket to -- to inspect 23 the documents. 24 to make the law available in this day and age. 25 That's just not the way one needs MR. BECKER: I'll instruct the witness to Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 256 1 wait for a question to be asked by counsel. 2 3 4 THE WITNESS: Yes. BY MR. HUDIS: Q. Mr. Malamud, at the end -- well, it's not 5 the end. 6 bottom, Mr. Mosley says in his letter to you, 7 "Although many of our library holdings are in the 8 public domain as products of employees or agents of 9 the federal government, some documents incorporated On page 10248 of Exhibit 33 at the 10 by reference do or may have copyright protection. 11 You are responsible for obtaining any necessary 12 permission for use, copying and publication from 13 copyright holders and for -- and for any other 14 applicable provisions of the Copyright Act." 15 he cites Title 17 of the United States code. 16 17 18 19 20 And Do you agree or disagree with that statement? MR. BECKER: conclusion. Objection. Objection. THE WITNESS: Calls for a legal Form. It says, "some documents 21 incorporated by reference do or may have copyright 22 protection." 23 in the United States has no copyright. 24 by the people. 25 BY MR. HUDIS: It is my understanding that the law It is owned Not by the government agencies. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 257 1 Q. So the moment any standard is incorporated 2 by reference into a federal regulation, it loses 3 its copyright protection; is that correct, 4 according to your view? 5 MR. BECKER: Objection. 6 conclusion. 7 Calls for a legal May misstate prior testimony. 8 9 Objection. THE WITNESS: Argumentative. Objection. I think words like "loses its copyright" are loaded. I do believe that the Code 10 of Federal Regulations has no copyright. 11 law. 12 into the Code of Federal Regulations are an 13 integral part of the code and therefore have no 14 copyright. 15 BY MR. HUDIS: 16 It's a And that standards incorporated by reference Q. Mr. Malamud, once you procured the 1999 17 standards in May of 2012, what, if anything, did 18 you do with them? 19 MR. BECKER: 20 THE WITNESS: Objection. Form. I examined the standard to 21 determine that it was, in fact, the document that 22 was specified and incorporated by reference. 23 BY MR. HUDIS: 24 25 Q. What else did you do with the standards once you had them? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 258 1 2 3 A. I scanned the standard and turned it into a PDF file. Q. So I would like to draw your attention back 4 to Exhibit 29, which is the interrogatory answers. 5 And I draw your attention to interrogatory answer 6 number 3 at the bottom of page 5 in Exhibit 29. 7 you see that? 8 A. Yes, I see that. 9 Q. All right. Do Now, do you see 10 Public.Resource's answer that starts at the bottom 11 of page 5 and continues on page 6? 12 A. I do. 13 Q. Does this interrogatory answer accurately 14 state what you did with the 1999 standards once you 15 procured them? 16 MR. BECKER: Objection. 17 THE WITNESS: It does. 18 19 20 21 BY MR. HUDIS: Q. 24 25 All right. So as I understand, you disassembled the book; correct? A. 22 23 Form. Mm-hm. MR. BECKER: Objection. Form. BY MR. HUDIS: Q. You removed the spine and any other extraneous materials. You trimmed the document. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 259 1 Do you see that? 2 A. I do. 3 Q. All right. And then you scanned it on a 4 Xerox 4250 scanner at 30 or 40 dots per inch. 5 you see that? 6 A. At 300 or 400 dots per inch. 7 Q. Do And then you named the file 8 Yes, I do. AERA.standards.1999.PDF? 9 A. That's correct. 10 Q. Now, the book that you got from the 11 reseller on Amazon, you said it was a used book? 12 13 14 15 A. I really don't recall if it was used or Q. Did you check the quality of the pages of new. the book before you scanned them? 16 A. Yes, I did. 17 Q. Did you notice -- did you compare your 18 copy -- your procured copy of the 1999 standards to 19 a new version of the standards? 20 MR. BECKER: Objection. Vague and 21 ambiguous; possibly misleading and misstates the 22 testimony. 23 THE WITNESS: So again, I'm not sure 24 whether it was new or used. 25 recollection. I simply have no I know I was able to obtain it on Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 260 1 the Amazon Marketplace. 2 3 4 5 What was the rest of your question? BY MR. HUDIS: Q. Did you compare the used version that you procured with a new version of the standards? 6 MR. BECKER: 7 THE WITNESS: 8 was a used or a new. 9 copy of the standards? 10 Same objections. So again, I'm not sure if it Did I compare it to another BY MR. HUDIS: 11 Q. Correct. 12 A. No, I did not. 13 Q. And in interrogatory answer number 3 you 14 talk about a quality check process. 15 me what that quality check process was? 16 17 18 19 A. Could you tell In the case of a scan, making sure all the pages are there and that the scan was successful. Q. Did you check to make sure all the pages were there? 20 A. I believe I did, yes. 21 Q. And then you say, "The files are post 22 process to optimize the scan and to generate 23 optical character recognition on the text." 24 25 Did you do that? A. Yes, I believe I did. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 261 1 Q. And then it says, "Public.Resource then 2 double checks the IBR." 3 reference? 4 A. That's correct. 5 Q. "The incorporation by references, puts a That's incorporation by 6 cover sheet on the files and stamps metadata into 7 the headers." 8 9 10 What kind of metadata did you stamp into the headers? A. I have not examined the AERA standard 11 recently, but the normal practice is to stamp in 12 the name of the standard and possibly the CFR site 13 that we have there. 14 publisher, I believe, was also in the metadata. 15 Q. And the name of the original Did you or anyone on Public.Resource's 16 behalf use graphic design web tools to post the 17 1999 standards to the Internet? 18 19 MR. BECKER: Objection. 20 Objection. Compound. Vague. THE WITNESS: I created the cover sheet, 21 the certificate of incorporation using graphic 22 design tools. 23 tools to the core document, because it was simply a 24 scan. 25 I did not apply any graphic design (PLAINTIFFS' EXHIBIT 34 WAS MARKED.) Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 262 1 BY MR. HUDIS: 2 Q. Mr. Malamud, I show you a document that has 3 been marked as Exhibit 34, bearing production 4 numbers AERA_APA_NCME 31528 through 31738. 5 Do you recognize this document? 6 A. It appears to be a copy of the standards at 7 issue with the certificate of incorporation on the 8 top. 9 Q. All right. And is this the cover sheet 10 that you appended on top of the 1999 standards 11 posted on Public.Resource's website? 12 A. Yes, it appears to be. 13 Q. Who prepared this cover sheet? 14 A. I did. 15 Q. And who chose the language for the cover 16 sheet? 17 A. I did. 18 Q. What was your intention, Mr. Malamud, for 19 appending this cover sheet of Exhibit 34 on top of 20 the 1999 standards posted on Public.Resource's 21 website? 22 A. I wanted to be very clear that this was a 23 posting of a standard incorporated by reference 24 into the Code of Federal Regulations. 25 place this document in context. Alderson Reporting Company 1-800-FOR-DEPO I wanted to Carl Malamud May 12, 2015 San Francisco, CA Page 263 1 Q. And what was your purpose on the cover 2 sheet of using the medallion that had the word 3 "Repeatedly Approved." 4 A. To signify that the executive director of 5 the Office of the Federal Register had explicitly 6 and deliberately approved this incorporation by 7 reference. 8 Q. 9 used. We just went through the process that you We asked you the question, did you digitize 10 or convert to a digital format the 1999 standards, 11 and we went through that process. 12 My question is, who participated in the 13 process of disassembling the paper version of the 14 1999 standards, scanning them and processing them, 15 as you described here in interrogatory answer 16 number 3 and posting them to the Internet? 17 MR. BECKER: 18 THE WITNESS: 19 20 21 Objection. Compound. That was me. BY MR. HUDIS: Q. Did Point.B Studio participate in this process? 22 A. No. 23 Q. Did Rebecca Malamud participate in this 24 25 process? A. She did not. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 264 1 Q. Did HTC Global participate in this process? 2 A. They did not. 3 Q. Did anyone else besides yourself 4 participate in this process? 5 A. It's just me. 6 Q. I'd like you to look in Exhibit 29, 7 interrogatory answer number 4 on page 6. 8 9 So consistent with your -- your prior testimony, does this interrogatory answer number 4 10 in Exhibit 29 accurately identify all the persons 11 and entities who were involved in disassembling the 12 paper version of the 1999 standards, scanning them, 13 processing them and posting them to the Internet? 14 MR. BECKER: Objection to form. 15 THE WITNESS: Yes, it was me. 16 17 18 19 BY MR. HUDIS: Q. I just want to go a little bit into depth about quality control. So what quality control procedures did you 20 use to ensure the quality of the textual comment -- 21 content of the 1999 standards that you posted to 22 the Internet? 23 MR. BECKER: 24 THE WITNESS: 25 Objection. Vague. This is a scan of a document. BY MR. HUDIS: Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 265 1 Q. Mm-hm. 2 A. It's a pixel-by-pixel replication of what 3 4 was on the printed page. Q. 5 I'll be more specific. 6 Did you check for missing or incorrectly scanned pages? 7 A. I believe I did. 8 Q. Did you check for pages that may have had 9 blurred text? 10 A. I believe I did. 11 Q. Now, you say, "I believe I did." 12 13 Do you know for sure that you did? A. My standard procedure is to do those 14 things. 15 because I don't recollect back to that period in 16 May 2012. 17 did, in fact, do that. 18 standard procedure. 19 20 21 Q. I don't know this specific document simply So I can't testify under oath that I But that certainly is my Mr. Malamud, what is search engine optimization? A. Search engine optimization is a technical 22 term of art that has to do with how documents that 23 are on a web server show up in search engine 24 results. 25 Q. Please continue. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 266 1 A. In particular with the PDF document, what 2 you want in a search engine result is rather than, 3 for example, a snippet of OCR, you want the actual 4 title of the document to show up in a description. 5 It's what Google would cause a snippet. 6 So by embedding metadata in the header of 7 the PDF file, the attempt is to make sure that that 8 document title shows up in the search engine 9 results so people know what that document is. 10 Q. So, Mr. Malamud, did you check the metadata 11 you added to the PDF file comprising the 1999 12 standards for search engine optimization? 13 A. Well, when I created the script that embeds 14 the metadata in the header, I had in mind search 15 engine optimization. 16 So assuming I did my job right, and 17 remember search engines change over time. 18 you did something in one period of time, that 19 doesn't necessarily mean that a search engine will 20 react the same way later on. So if 21 But assuming that I wrote that initial 22 script properly, then this document would have 23 shown up in a meaningful fashion in search engine 24 results. 25 Q. And your answer just now said, "assuming." Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 267 1 You don't know for sure with respect to this 2 particular document? 3 A. I don't recollect looking at this document 4 in Google or Bing or other search engine results to 5 determine that fact. 6 Q. Did you check the quality of the optical 7 character recognition process for accuracy for the 8 1999 standards? 9 MR. BECKER: 10 11 THE WITNESS: Objection. Form. Hold on a second. I'd like to double-check something. 12 OCR is inherently prone to certain errors. 13 And what I used was the best available OCR that I 14 had, which was in Adobe Acrobat Pro. 15 pull up the underlying text. 16 text is used to search a file; not to read a file. 17 18 19 But I did not The underlying OCR Does that answer your question? BY MR. HUDIS: Q. So in doing a quality check of the optical 20 character recognition process for accuracy, did you 21 attempt to pull up the underlying text after the 22 scan was completed? 23 A. No. 24 MR. BECKER: 25 THE WITNESS: Objection. No. Form. And I never said that I Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 268 1 did do that on a consistent basis. 2 of our normal workflow, no. 3 BY MR. HUDIS: 4 Q. It's not part Was the PDF file of the 1999 standards that 5 you created ever converted from PDF to any other 6 format before posting to the Internet? 7 MR. BECKER: 8 THE WITNESS: 9 10 11 Q. creed a PDF file, was it ever converted to JPEG? 13 THE WITNESS: 16 I don't think so. So the 1999 standards that you scanned and MR. BECKER: 15 Form. BY MR. HUDIS: 12 14 Objection. Objection. Form. I'm not sure what that means. BY MR. HUDIS: Q. Was it converted from PDF format to a JPEG format? 17 MR. BECKER: 18 THE WITNESS: Same objection. I don't think that would make 19 any sense on a document like that. 20 with, you know, a couple hundred JPEG files. 21 22 No. You'd end up I certainly wouldn't have done that. BY MR. HUDIS: 23 Q. Okay. 24 A. No. 25 Q. And would you have any -- would you have Did you convert it to SBG format? That wouldn't make any sense at all. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 269 1 had any reason to convert the PDF file of the 1999 2 standards to a MathML format? 3 MR. BECKER: 4 THE WITNESS: 5 Objection. Form. I don't -- well, first of all, MathML is embedded in an HTML file. 6 And second of all, at least to the best of 7 my recollection, I don't think there's any 8 mathematical formulas in the standards at issue. 9 BY MR. HUDIS: 10 Q. 11 12 So that brings me to my next question. Was the PDF file that you created from the 1999 standards ever converted to HTML format? 13 MR. BECKER: 14 THE WITNESS: 15 16 Objection. Form. No, we didn't do that. BY MR. HUDIS: Q. Was the PDF file of the 1999 standards that 17 you created ever converted from PDF to a format 18 making the standards accessible to the visually 19 impaired? 20 MR. BECKER: Objection. Form. Objection. 21 Competence; lacks foundation and assumes facts not 22 in evidence. 23 THE WITNESS: The OCR procedure does, in 24 fact, make the document accessible to the visually 25 impaired. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 270 1 BY MR. HUDIS: 2 Q. In what way? 3 A. A screen reader is able to read the 4 underlying text, granted with potential OCR errors, 5 but the vast majority of the text is accessible to 6 those that are visually impaired. 7 8 Q. Are you familiar with the format, refreshable Braille? 9 A. No, I'm not. 10 Q. Did you convert the PDF file of the 1999 11 standards that you made to refreshable Braille 12 format? 13 A. We don't do that. 14 Q. Did -- and you didn't convert -- 15 A. So no. 16 Q. All right. 17 We convert to HTML. No is the answer. And you didn't convert the PDF file to HTML either? 18 A. This particular standard, no, we did not. 19 Q. Okay. And did you convert the PDF file 20 that you created from the 1999 standards to large 21 print? 22 MR. BECKER: 23 THE WITNESS: Objection. Form. It is an unencumbered PDF, 24 and so a viewer can, in fact, magnify the text that 25 is there. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 271 1 So in that sense, large print, we did not 2 retype the documents into a large print edition. 3 BY MR. HUDIS: 4 Q. Mr. Malamud, do you have any materials in 5 your -- in Public.Resource's possession documenting 6 the process you went through of disassembling the 7 paper version of the 1999 standards, scanning them, 8 processing them and posting them to the Internet? 9 MR. BECKER: 10 11 THE WITNESS: process. 12 13 16 Compound. No, there's no intermediate That's a book and then it gets scanned. THE REPORTER: Did you say "there's no intermediate product"? 14 15 Objection. THE WITNESS: Intermediate process. BY MR. HUDIS: Q. Mr. Malamud, once you converted the 1999 17 standards from paper to the PDF format, what did 18 you do with the contents of the file? 19 20 21 A. I posted the file to Law.Resource.Org and to the Internet Archive. Q. Mr. Malamud, could you please return your 22 attention to Exhibit 29, interrogatory answer 23 number 2. 24 A. Okay. 25 Q. Does interrogatory answer number 2 Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 272 1 accurately state when and where you posted the 1999 2 standards to the Internet? 3 A. It does. 4 Q. And what was the date that you posted the 5 standards to the Internet? 6 MR. BECKER: 7 THE WITNESS: Objection. Form. As our interrogatory says, 8 July 11, 2012 on Law.Resource.Org and ... 9 BY MR. HUDIS: 10 Q. All right. 11 A. Yeah. 12 Q. And as you said, you posted the standards And -- 13 to Law.Resource.Org, and you also posted the 14 standards to the Internet Archive; correct? 15 A. That is correct. 16 Q. Mr. Malamud, what is the name of the 17 Public.Resource web server to which you saved the 18 file containing the contents of the 1999 standards? 19 A. Law.Resource.Org. 20 Q. That's the name of the server? 21 A. Yes. 22 MR. BECKER: 23 MR. HUDIS: 24 THE WITNESS: 25 MR. HUDIS: Please give me time to object. I'm sorry. That was my fault. I don't want to be rude, Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 273 1 Counsel, seriously. 2 BY MR. HUDIS: 3 4 Q. Is the file containing the 1999 standards still saved on that web server? 5 6 Okay. MR. BECKER: Objection. Vague and ambiguous; assumes facts not in evidence. 7 THE WITNESS: It is not in the document 8 tree of the web server, no. 9 BY MR. HUDIS: 10 Q. Do you still have that file still saved 11 somewhere within Public.Resource's computer 12 systems? 13 A. Yes, I do. 14 Q. Where? 15 A. One copy on my desktop. One copy in the 16 not published directory. 17 exact name of it is. 18 it's a private area that's not accessible to -- to 19 anybody but myself and our systems administrator. 20 Q. I don't know what the Someplace on our server, but Mr. Malamud, does Public.Resource have any 21 logs from its web servers documenting the date on 22 which the 1999 standards were posted to 23 Public.Resource's website? 24 25 MR. BECKER: ambiguous. Objection. Objection. Vague and Lacks foundation. Alderson Reporting Company 1-800-FOR-DEPO And Carl Malamud May 12, 2015 San Francisco, CA Page 274 1 assumes facts not in evidence. 2 THE WITNESS: There's no logs, but there 3 was a file creation date on the file. 4 BY MR. HUDIS: 5 6 7 Q. creation date ever been produced to us? A. 8 9 10 Has any documentation noting the file I don't know. MR. HUDIS: Counsel, if that document has not been provided to us, it should be provided to us now. 11 THE WITNESS: So the file creation date was 12 the date that the standard was posted. 13 your request we removed that standard and replaced 14 it with a stub, that's going to be the new creation 15 date. 16 record. 17 BY MR. HUDIS: 18 Q. And when at So I don't believe there's going to be a What about the old creation date when the 19 original standards file was -- was posted to your 20 web server? 21 A. I moved it to a different area. I mean, 22 you can make the request and we'll go look and see 23 if that's there, but it's -- 24 25 Q. Thank you, Mr. Malamud, I appreciate that. Did you post the entirety of the 1999 Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 275 1 standards to Public.Resource's website? 2 A. Yes. 3 Q. Mr. Malamud, as it pertains to the Internet 4 Archive, what is a collection? 5 6 MR. BECKER: Objection. Asked and answered. 7 THE WITNESS: A collection is a set of 8 items that often have a common theme. 9 BY MR. HUDIS: 10 11 Q. And you said you posted the 1999 standards to Internet Archive's website; correct? 12 A. That is correct. 13 Q. And did you post the entirety of the 1999 14 standards to Internet Archive's website? 15 A. I did. 16 Q. Under which collection at the Internet 17 Archive did you post the 1999 standards? 18 MR. BECKER: 19 THE WITNESS: Objection. Form. The current name of that 20 collection is Codes of the World. 21 BY MR. HUDIS: 22 23 24 25 Q. How did you choose this particular collection to which to post the 1999 standards? A. It's the -MR. BECKER: Objection. Assumes facts not Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 276 1 in evidence. 2 THE WITNESS: It's the collection I created 3 to hold the standards incorporated by reference. 4 BY MR. HUDIS: 5 6 Q. All right. So you created the Codes of the World collection on Internet Archive's website? 7 A. I did. 8 Q. Mr. Malamud, I show you what was previously 9 10 marked at Internet Archive's deposition in this case as Butler Exhibit 6. 11 Do you see that? 12 A. I do. Let me correct a misstatement. 13 wasn't called Codes of the World. 14 Global Public Safety Codes is the name of the 15 It collection. 16 Q. It was called And what types of materials did you post to 17 the Global Public Safety Codes collection on 18 Internet Archive? 19 A. Standards incorporated by reference in the 21 Q. Do you recognize Butler Exhibit 6? 22 A. This is a document you created? 23 Q. It's a document we printed from the 20 24 25 law. Internet Archive. A. This appears to be a series of screen dumps Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 277 1 from that item in which you are paging through the 2 standards at issue, is what this appears to be. 3 4 Q. That's exactly correct. And you just saved me about five minutes of explanation. 5 A. Oh, sorry about that. 6 Q. That's fine. 7 Mr. Malamud. 8 9 10 What is the web tool, if you know, that creates the ability for a user to turn the pages of the 1999 standards like a book? 11 12 Thank you very much, MR. BECKER: Objection. Vague and ambiguous; confusing. 13 THE WITNESS: I have heard it called book 14 reader, but I don't know the details of what the 15 code is or how it's embedded or anything of that 16 sort. 17 BY MR. HUDIS: 18 19 Q. So you've heard it referred to as a book reader application? 20 A. Yes. 21 Q. All right. 22 Have you ever heard of a DjVu Reader? 23 A. Yes, I have. 24 Q. And what -- what is its function, to the 25 best of your knowledge? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 278 1 A. DjVu is another format for creating 2 documents, and a DjVu Reader is one that enables 3 one to page through a document in a DjVu format. 4 5 Q. skip -- strike that. 6 7 When you posted the 1999 standards -- Looking at Exhibit Butler 6, does this look like the '99 -- 1999 standards -- 8 MR. BECKER: 9 MR. HUDIS: 10 11 12 Objection. Form. I didn't finish. BY MR. HUDIS: Q. -- were presented in page-turning format using either book reader or DjVu Reader? 13 MR. BECKER: 14 THE WITNESS: Same -- same objection. Yeah, if this is the standard 15 Internet Archive screen, this is a PDF file that is 16 being used for the -- the page turning capability. 17 BY MR. HUDIS: 18 Q. 19 Now I'll continue with my next question. When you posted the 1999 standards to the 20 Internet Archive website, did you input the 21 following information to go with the file? 22 I'll take them one at a time. 23 24 25 A. I did. Author? That's actually a standard Internet Archive field that I believe is required. Q. And And did you input that information? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 279 1 2 A. I did in the sense of the API call that created this -- this item. 3 Q. The API call is? 4 A. API is application programming interface, 5 and it is a mechanism to write a command script 6 that talks to a remote system and creates an item, 7 in this case at the Internet Archive. 8 9 10 Q. So when you use the API call to post the 1999 standards to the Internet Archive website, did you input the information under author? 11 MR. BECKER: 12 THE WITNESS: Objection. Form. Yes, although I believe in 13 the API call, it's called creator. 14 Internet Archive images it as author. 15 BY MR. HUDIS: And the 16 Q. And did you input the language for subject? 17 A. I did. 18 Q. Did you input the language for language? 19 A. Yes. 20 Q. Did you input the language for collection? 21 A. I specified which collection this item 22 would be, and this field here is automatically 23 generated, I believe, by the Internet Archive. 24 25 Q. Now, if you would please turn to the next page of Exhibit Butler 6. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 280 1 2 Did you input the information for identifier? 3 A. Yes, I specified the identifier. 4 Q. Did you input the information for the 5 credits? 6 7 A. The phrase uploaded by Public.Resource.Org, yes, I did. 8 Q. Did you input the information for license 10 A. Yes, I did. 11 Q. And what was the purpose of you inputting 9 12 URL? the URL for CreativeCommons.org? 13 MR. BECKER: 14 THE WITNESS: Objection. Form. Any specification of 15 providence on the Internet Archive uses the 16 Creative Commons mechanism. 17 BY MR. HUDIS: 18 Q. And what is the significance of using the 19 Creative Commons mechanism? 20 MR. BECKER: 21 Objection. Vague and ambiguous. 22 THE WITNESS: 23 Commons CC0 license. 24 BY MR. HUDIS: 25 Q. In this case it's a Creative What is a Creative Commons 0 license? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 281 1 A. 2 3 CC. MR. BECKER: Objection. Vague and ambiguous; may call for a legal conclusion. 4 THE WITNESS: CC0, again, I'm not a lawyer, 5 is no rights asserted. 6 identifier is not asserting any rights over this 7 item. 8 BY MR. HUDIS: The creator of this 9 Q. And that would have been you? 10 A. That's correct. 11 Q. And did you insert the language for media 12 13 14 15 16 17 18 type? A. Yes, I specified in the API call that this was a object of type text. Q. And did you insert the information for identifier access? A. That's automatically generated based on the name of the identifier. 19 Q. And what is identifier ark? 20 A. I have no idea. 21 Q. Did you insert that information for 22 identifier ark? 23 A. No, I don't know what that is. 24 Q. In what format did you post the 1999 25 standards to the Internet Archive website? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 282 1 MR. BECKER: 2 THE WITNESS: 3 4 5 6 7 8 9 Objection. Form. A PDF document. BY MR. HUDIS: Q. Did you post the 1999 standards to the Internet Archive website in any other format? A. The API call that created that item ID uploaded a PDF file. Q. When Public.Resource posts standards incorporated by reference by a governmental agency 10 to one of its websites, is it Public.Resource's 11 policy to always post the same standard to a 12 collection on the Internet Archive website? 13 14 MR. BECKER: Objection. Vague and ambiguous; may assume facts not in evidence. 15 THE WITNESS: 16 general practice. 17 Not always, but it's a BY MR. HUDIS: 18 19 Q. Turning back to Exhibit Butler 6. Please turn to the first page, Mr. Malamud. 20 A. Okay. 21 Q. And I'd like you to look on the left-hand 22 side of the page. 23 following entries mean, if you know. 24 25 I'd like to know what the PDF 4.2 M? A. Where does it say that? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 283 1 Q. To the very -- 2 A. Oh, I see. I see what you're talking 3 about. 4 Q. All right. What does the entry PDF 14.2 M 5 6 mean? A. 7 8 9 10 11 12 13 14.2 M is 14.2 megabytes. And PDF is the item in PDF format. case it's the one that I uploaded. Q. And then the next entry is EPUB 335.4 K. What does that entry mean? A. It is the same item in EPUB format, which is an e-book format. Q. And what does the next entry mean here, 14 full text 6.86. -- I'll start again. 15 text 686.0 K. 16 17 In this 68 -- full What does that mean? MR. BECKER: Objection for mischaracterizing the document. 18 THE WITNESS: That file is 686 kilobytes in 19 size. 20 process that the Internet Archive conducts on all 21 text items. 22 BY MR. HUDIS: 23 24 25 Q. And the full text is derived from an OCR And the next entry I believe is a shorthand for DjVu. A. Do you understand that? I do. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 284 1 2 MR. BECKER: Objection. Form. BY MR. HUDIS: 3 Q. 4 that mean? 5 A. It's the item in DjVu format 8.2 megabytes. 6 Q. And then what does -- what does it mean 7 8 And so the next entry DjVu 8.2 M, what does when it says, "All files HTTPS"? A. By clicking on that link, you can see all 9 the files in that item, such as the PDF file, the 10 EPUB file, but also a metadata file, for example. 11 Q. Besides Law.Resource.Org and Internet 12 Archive, did you post the 1999 standards to any 13 other website? 14 A. I did not. 15 Q. Mr. Malamud, in your opinion what value did 16 Public.Resource add to the 1999 standards by 17 disassembling the paper version, scanning it, 18 processing it, as you described in interrogatory 19 answer number 3, and posting the file to the 20 Internet? 21 MR. BECKER: Objection as compound -- the 22 question is compound; may misstate prior testimony; 23 vague and ambiguous. 24 THE WITNESS: 25 The value we provided is to make a document that was incorporated by reference Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 285 1 under the Code of Federal Regulations available on 2 the Internet for people to read. 3 BY MR. HUDIS: 4 Q. 5 For free? MR. BECKER: Also object as argumentative 6 to that last question. 7 BY MR. HUDIS: 8 Q. For free? 9 A. We never charge for content. 10 Q. Mr. Malamud, did Public.Resource anticipate 11 incurring legal liability for posting the 1999 12 standards on the Internet? 13 MR. BECKER: Objection. I will instruct 14 the witness not to answer as to any attorney-client 15 privileged communications. 16 any legal conclusions. 17 18 19 THE WITNESS: And moreover, object to We did not. BY MR. HUDIS: Q. Mr. Malamud, you scanned and posted the 20 1999 standards to the -- to the Internet, did you 21 consult with educational or psychological 22 professionals? 23 MR. BECKER: Objection as vague and 24 ambiguous; argumentative; potentially objection 25 towards competence. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 286 1 2 3 THE WITNESS: No. BY MR. HUDIS: Q. Before you scanned and posted the 1999 4 standards to the Internet, did you check the 5 records of the U.S. copyright Office to determine 6 whether the 1999 standards were registered? 7 MR. BECKER: Objection. Calls for -- it 8 may call for a legal conclusion. 9 being potentially misleading. 10 13 And objection as to competence, and argumentative and lacks foundation. 11 12 Objection as to THE WITNESS: I did not. BY MR. HUDIS: Q. Before you scanned and posted the 1999 14 standards to the Internet, did you consult with 15 counsel to determine whether the scanning and 16 posting of this work to the Internet would not be a 17 violation of U.S. copyright law? 18 MR. BECKER: Objection. I will instruct 19 the witness not to provide any information about 20 privileged communications between the witness and 21 counsel. 22 THE WITNESS: I'm not going to discuss my 23 discussions with counsel. 24 BY MR. HUDIS: 25 Q. Before you scanned and posted the 1999 Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 287 1 standards on the Internet, did you obtain 2 permission from either AERA, APA or NCME to do so? 3 MR. BECKER: Objection. Argumentative; 4 assumes facts not in evidence; may call for a legal 5 conclusion. 6 THE WITNESS: 7 (PLAINTIFFS' EXHIBITS 35A-35B WERE MARKED.) 8 9 I did not. BY MR. HUDIS: Q. Mr. Malamud, do you recall giving a speech 10 at MIT entitled Yo! Your Honor in April of this 11 year? 12 A. I do. 13 Q. And who co-hosted your speech? 14 15 MR. BECKER: Objection. Assumes facts not in evidence. 16 THE WITNESS: It was the MIT Center for 17 Civic Media and the Laboratory for Social Machines. 18 BY MR. HUDIS: 19 Q. Mr. Malamud, that speech was -- was made 20 available on the Internet. 21 What I gave you was the text of the speech, and the 22 CD is the download of the audio and video, just so 23 you can -- you and your counsel can assure yourself 24 that the transcription was accurate. 25 few questions for it. We had it transcribed. Alderson Reporting Company 1-800-FOR-DEPO I only have a Carl Malamud May 12, 2015 San Francisco, CA Page 288 1 MR. BECKER: And I'll just state an 2 objection that we are unable at this moment to view 3 the contents of this CD. 4 as to what is actually on that CD, nor does the 5 deponent. 6 So we have no knowledge And also state an objection to the -- to 7 the extent that this document 35-A has been 8 transcribed by counsel for plaintiffs, and at 9 present we do not know whether it is accurate or 10 not. 11 BY MR. HUDIS: 12 Q. Mr. Malamud, on Exhibit 35-A if you could 13 turn to page AERA -- well, let me just identify the 14 document. 15 16 Exhibit 35-A bears production numbers AERA_APA_NCME 32036 through 32074. 17 18 19 Mr. Malamud, could you please turn to production page 32039. A. Okay. I want to note, however, that there 20 appears to be a large number of transcription 21 errors, but I'm on page 32039. 22 23 Q. Thank you, Mr. Malamud. In the middle of that page it says, "So we 24 did two things that were fairly significant in 2007 25 and 2008. I began posting all the building codes Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 289 1 for the country because these are the law. 2 are not advisory codes. 3 the law in all our states. 4 national electric code, and I began posting those 5 and nothing happened." These These are incorporated in Things like the 6 What did you expect to happen? 7 MR. BECKER: Objection again to the fact 8 that the witness has noted that there are 9 transcription errors in this document. The 10 document may not accurately reflect what is 11 purported to be Mr. Malamud's April 7th speech. 12 And objection to the extent that this document 13 otherwise speaks for itself, and vague and 14 ambiguous; argumentative. 15 THE WITNESS: If you look at the statement 16 that you read it says, "I began posting these and 17 nothing happened." 18 notices, and there are copyright assertions on 19 these documents. 20 in the speech, if I remember right. 21 Nobody sent me take-down I dealt with that a little later So nothing happened. Nobody sent me 22 take-down notices. 23 picked up the phone and called me up and said, 24 "Let's talk about these building codes." 25 BY MR. HUDIS: And just as importantly, nobody Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 290 1 Q. So continuing that same answer here as you 2 were talking with a moderator, going down lower on 3 the page it says, "And so I did that for a few 4 years and nothing much happened. 5 all the safety standards that are required by law 6 at the federal level and the Code of Federal 7 Regulations. And then the shit kind of hit the fan 8 on that one. We got sued in two district court 9 cases by six plaintiffs, and we're currently in 10 court. 11 12 I began posting It's an intense legal battle." Were you speaking of the AERA lawsuit and the ASTM lawsuit? 13 A. I was. 14 Q. If you could turn to page -- production 15 page 32066 in Exhibit 35-A. 16 A. Okay. 17 Q. At the top of the -- at the top of the page 18 it says, "So to me it's about education. 19 about justice and democracy and, you know, those 20 kinds of little things, because I think that's an 21 important thing in the United States. 22 overly lawyered, and one of the reasons is you have 23 to be part of the guild in order to access the 24 material, and I've been doing this issue for a 25 while. We are There are so many people that are Alderson Reporting Company 1-800-FOR-DEPO But also Carl Malamud May 12, 2015 San Francisco, CA Page 291 1 non-lawyers that are intensely interested in the 2 operation of our system of justice, and I think 3 those people should have the same access as those 4 that are actually practicing inside." 5 Do you see that? 6 A. I do. 7 Q. What did you mean by "part of the guild"? 8 MR. BECKER: Objection. Same objections 9 concerning the authenticity of this document, as 10 well as the document speaking for itself; vague. 11 THE WITNESS: I was discussing the PACER 12 system, first of all. 13 or incorporation by reference. Not the standards at issue 14 I meant that there is a feeling within the 15 legal profession that the only people that need to 16 access the PACER system are those in the legal 17 profession, and I believe that feeling is misguided 18 and wrong. 19 BY MR. HUDIS: 20 21 22 23 Q. Let's then return to the 1999 standards. Do you know whether AERA, APA or NCME restrict access to the 1999 standards? MR. BECKER: Objection. To the extent that 24 any of Mr. Malamud's knowledge comes from 25 discussion with counsel, I will instruct him not to Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 292 1 answer, as to any knowledge that he has that has 2 come from counsel. 3 Objection to the extent that this may call 4 for a legal conclusion. 5 that it's argumentative and vague and ambiguous. 6 THE WITNESS: Objection to the extent If by "restrict" you mean 7 impose conditions on people attempting to make 8 documents incorporated by reference in the law, 9 yes, I believe they do restrict. 10 BY MR. HUDIS: 11 Q. In what way? 12 A. You're suing me for having posted this 13 document that was incorporated by reference in the 14 law. 15 restrict that process. 16 I think that's evidence of an attempt to Q. Mr. Malamud, if the three plaintiffs that 17 have brought this lawsuit charged 50 or $60 for a 18 printed copy of the 1999 standards, do you believe 19 that is a restriction to the access of the 1999 20 standards by the public? 21 MR. BECKER: Objection. Misleading. 22 Objection. 23 lacks foundation and assumes facts not in evidence 24 and argumentative. 25 Hypothetical; calls for speculation; THE WITNESS: The issue is not whether the Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 293 1 plaintiffs are charging $60 for purchasing a 2 printed copy. 3 are restricting the ability of Public.Resource to 4 make documents incorporated by reference into the 5 Code of Federal Regulations available to citizens 6 on the Internet. 7 BY MR. HUDIS: 8 9 10 Q. The issue is whether the plaintiffs Do you believe that charging $60 a copy for the 1999 standards is a restriction on the public's access to the 1999 standards? 11 MR. BECKER: Objection. Asked and 12 answered. 13 speculation; assumes facts not in evidence. 14 Objection. THE WITNESS: Argumentative; calls for Charging $60 for a document 15 and only making it available on that basis, 16 certainly restricts the ability of citizens to 17 easily find and read that particular portion of the 18 Code of Federal Regulations. 19 20 21 (PLAINTIFFS' EXHIBIT 36 WAS MARKED.) BY MR. HUDIS: Q. Mr. Malamud, I show you what's been marked 22 as Exhibit 36, bearing production numbers PROAERA 23 830 through PROAERA 837. 24 25 Do you recognize the document? A. I do. It appears to be a copy of table 12 Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 294 1 of the 12 tables. 2 Q. What are the 12 tables? 3 A. It is the directory, if you will, on 4 Law.Resource.Org to standards incorporated by 5 reference. 6 Q. 7 8 9 10 11 Do you have any reason to doubt the authenticity of Exhibit 36? A. I do not. MR. HUDIS: Counsel, can you stipulate that Exhibit 36 is a business record of Public.Resource? MR. BRIDGES: Well, I will respond to this. 12 You're saying Exhibit 36 as an -- as a directory is 13 a business record? 14 the stipulation is that you're asking for. 15 MR. HUDIS: I'm not -- I'm not clear what Yeah, so I just want to know, 16 this is a document that Mr. Malamud said he's 17 created during his work at Public.Resource. 18 identified the document as authentic. 19 like to know if you can stipulate that Exhibit 36 20 is a business record of Public.Resource. 21 22 23 24 25 MR. BRIDGES: He's And I would What -- what do you mean by "business record" in this context? MR. HUDIS: A business record under Federal Rules of Evidence 8036. MR. BRIDGES: Let me look at that rule. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 295 1 I don't think we're going to stipulate to 2 that. 3 regularly conducted activity. I don't think this is a record of a 4 MR. HUDIS: 5 Mr. Malamud the questions. 6 BY MR. HUDIS: All right. Let me just ask 7 Q. Mr. Malamud, did you create Exhibit 36? 8 A. I did. 9 Q. Okay. 10 11 12 13 And did -- from what information did you create Exhibit 36? A. It is a record of correspondence with -- related to the Law.Resource.Org documents. Q. And has this document been kept in the 14 regularly -- in the regular course of 15 Public.Resource's business? 16 MR. BECKER: 17 Objection. Ambiguous; possibly argumentative. 18 THE WITNESS: Yeah, I don't know regularly 19 kept. 20 and I have updated it on occasion. 21 BY MR. HUDIS: 22 Q. It was created at the end of December 2012, And making records of the type shown in 23 Exhibit 36 is a regular practice of 24 Public.Resource's business? 25 MR. BECKER: Objection. Vague and Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 296 1 ambiguous; argumentative; lacks foundation. 2 THE WITNESS: Yeah, I don't know about a 3 regular practice, but in the case of letters 4 received and sent relating to Law.Resource.Org, 5 this is a place where I've posted some of that 6 correspondence. 7 BY MR. HUDIS: 8 9 10 Q. counsel, we could not tell whether these columns had any particular headings because it's all black. 11 12 13 As Exhibit 36 was produced to us by your Mr. Malamud, are there column heading designations to this table of Exhibit 36? A. I don't know. I would have to check. It 14 certainly doesn't appear to be so, however, from 15 the formatting. 16 column above that is in white, right. 17 a dark header. 18 check. 19 Q. 20 21 You'll notice that the text in the So I don't know. When there's I mean we can go It's online. Let's take a break. Can you check that online? A. Well, I can't. I don't have a computer. 22 But you can if you'd like. 23 you the URL? 24 Q. We'll check. 25 A. Do you want me to give Okay. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 297 1 THE VIDEOGRAPHER: 2 MR. HUDIS: 3 Yes. Just so she can get there. 4 THE WITNESS: 5 MR. BECKER: 6 THE VIDEOGRAPHER: 7 Take a break? Sure. Off the record. The time is 5:36 and we are off the record. 8 (Recess taken.) 9 THE VIDEOGRAPHER: 10 are back on the record. 11 The time is 5:45, and we BY MR. HUDIS: 12 Q. Mr. Malamud, while we were on a break, we 13 checked the color version of Exhibit 36 on 14 Public.Resource's website, and could you please 15 tell us for the record what the column headings are 16 for the four columns of Exhibit 36? 17 18 A. The four columns are "Date," "RFC," "Initiator" and "Description." 19 Q. What does RFC refer to? 20 A. Request for comment. 21 Q. And that was -- and so the second column 22 labeled RFC, that is a request for comment from 23 whom to whom? 24 25 A. RFC is a term used in the Internet Engineering Task Force for numbering documents. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 298 1 And so it's simply a sequential numbering 2 mechanism. 3 Q. 4 So other than the sequential numbering, RFC has no other significance? 5 A. (Witness shaking head from side to side.) 6 MR. BRIDGES: 7 vague and ambiguous. 8 THE WITNESS: 9 Lacks foundation; No, it's just a term I used. BY MR. HUDIS: 10 11 Objection. Q. Okay. And the column labeled initiator, what did you mean by initiator? 12 A. The organization that authored the 13 correspondence or other information that is listed 14 in the next column. 15 16 Q. And what information did you put in the description column? 17 A. Well, it depends. If it was a -- a grayed 18 out section, it's a section divider. 19 other components are individual documents. 20 21 22 23 24 25 Q. And then the Overall, what did you collect in Exhibit 36? MR. BRIDGES: Objection. Lacks foundation; vague and ambiguous; argumentative. THE WITNESS: Two things. One are blog posts that are relevant to the Law.Resource.Org Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 299 1 activities. 2 BY MR. HUDIS: 3 Q. And you say there was a second item? 4 A. Letters received from institutions having 5 6 to do with the Law.Resource.Org activities. Q. Were some of these letters that were 7 received from institutions complaining about 8 Public.Resource posting standards incorporated by 9 reference on to its website? 10 MR. BRIDGES: 11 14 Compound; argumentative; vague and ambiguous. 12 13 Objection. THE WITNESS: Yes. BY MR. HUDIS: Q. And could you tell me what information is 15 provided in the row on page PROAERA 832 at the 16 bottom bearing the date 12/16/2013? 17 18 A. That was the take-down notice from AERA regarding the standards at issue. 19 Q. The 1999 standards? 20 A. That's correct. 21 Q. Mr. Malamud, at some time after you posted 22 the 1999 standards to the Internet, did you remove 23 them from public view? 24 MR. BRIDGES: 25 vague and ambiguous. Objection. Lacks foundation; Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 300 1 2 3 THE WITNESS: Yes. BY MR. HUDIS: Q. When did you do this? 4 MR. BRIDGES: Same objection. 5 THE WITNESS: I believe that would be June 6 2014. 7 answers. 8 BY MR. HUDIS: 9 That date is specified in the interrogatory Q. 10 I was just going to direct you there. 11 So if you could go back to Exhibit 29. Interrogatory answer number 2, page 5. 12 A. I'm there. 13 Q. All right. And so June 10, 2014 is when 14 you removed the 1999 standards from public view 15 from Law.Resource.Org and from the Internet 16 Archive? 17 MR. BRIDGES: Objection. Compound; lacks 18 foundation and all the other objections I gave to 19 the earlier question along this line. 20 21 22 THE WITNESS: That's correct. BY MR. HUDIS: Q. What, if anything, did you put in place of 23 the content of the 1999 standards on 24 Public.Resource's website once the standards were 25 removed? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 301 1 MR. BRIDGES: 2 ambiguous; lacks foundation. 3 THE WITNESS: Objection. Vague and I put what I call a stub 4 document, with the cover sheet and a single page 5 explaining the document had been removed from view. 6 7 8 9 10 (PLAINTIFFS' EXHIBIT 37 WAS MARKED.) BY MR. HUDIS: Q. as Exhibit 37 bearing production numbers PROAERA 822 through PROAERA 823. 11 12 Mr. Malamud, I show you what's been marked Is this the stub document that you were referring to? 13 A. It is. 14 Q. Do you have any reason to doubt the 15 16 authenticity of this document? A. I do not. 17 MR. BRIDGES: 18 ambiguous; lacks foundation. 19 THE WITNESS: 20 21 Objection. Vague and I do not. BY MR. HUDIS: Q. What was the purpose of posting this single 22 page where the content of the 1999 standards 23 previously was on Public.Resource's website? 24 25 MR. BRIDGES: I'm sorry. misleading; confusing question. I -- it's I'll ask the court Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 302 1 reporter to reread it. 2 3 MR. HUDIS: MR. BRIDGES: 8 9 10 I'm Thank you. I heard it the same way the transcription. 6 7 No, it's mistranscribed. going to ask it again, Counsel. 4 5 You may have misspoken. MR. HUDIS: Okay. BY MR. HUDIS: Q. What was the purpose of posting this single page where the content of the 1999 standards previously was on the Public.Resource's website? 11 MR. BRIDGES: 12 ambiguous; lacks foundation. 13 THE WITNESS: Objection. Vague and So anybody accessing that URL 14 knew that the document had been removed and it was 15 not a technical error. 16 BY MR. HUDIS: 17 18 Q. When did you post this stub page to Public.Resource's website? 19 A. June 10th, 2014. 20 Q. And on page 823 why did you use the word 21 "temporarily"? 22 MR. BRIDGES: Objection. 23 THE WITNESS: Because it's pending the 24 25 Argumentative. resolution of this litigation. MR. HUDIS: Turning back to Exhibit 29, Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 303 1 interrogatory number 2, the answer on page 5 of 2 Exhibit 29. 3 So June 10th, 2014 was the date that you 4 removed the 1999 standards from public view on 5 Public.Resource.Org's website and on Internet 6 Archive's website? 7 MR. BRIDGES: 8 objection. 9 I'm sorry, are you -- interrogatory says? 10 11 MR. HUDIS: No, I'm asking him the date of removal. 12 13 Are you asking him if that's what the MR. BRIDGES: I think it's asked and answered. 14 THE WITNESS: 15 It's in the interrogatory. 16 June 10th, 2014. BY MR. HUDIS: 17 18 Q. Mr. Malamud, do you know what a make-dark command is? 19 MR. BRIDGES: 20 vague and ambiguous. 21 THE WITNESS: Objection. Lacks foundation; Yes, although you need to 22 place that in context. 23 impression of what you mean. 24 BY MR. HUDIS: 25 Q. All right. I mean, I have a general What is a make -- what is your Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 304 1 understanding of a make-dark command? 2 MR. BRIDGES: Objection. 3 THE WITNESS: Yeah, do you have a specific Lacks foundation. 4 instance of -- of that and I'd be happy to -- 5 BY MR. HUDIS: 6 Q. Sure. 7 A. -- to talk about it. 8 Q. Did you remove the 1999 standards from 9 public view on Internet Archive's website by 10 issuing a make-dark command to their server as a 11 registered user having administrative privileges to 12 do so? 13 MR. BRIDGES: 14 vague and ambiguous. 15 THE WITNESS: Objection. Lacks foundation; I used the item manager, and 16 I pressed the make-dark button on that form. 17 BY MR. HUDIS: 18 19 20 21 22 23 24 25 Q. All right. All right. And what is the purpose of the make-dark button? MR. BRIDGES: Objection. May lack competence. THE WITNESS: It makes the document inaccessible for public view. (PLAINTIFFS' EXHIBIT 38 WAS MARKED.) BY MR. HUDIS: Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 305 1 Q. Mr. Malamud, I show you a document that's 2 been marked Exhibit 38 bearing production number 3 PROAERA 824. 4 Do you recognize the document? 5 A. I do. 6 Q. What is this document of Exhibit 38? 7 A. It is e-mail to the Internet Archive 8 9 10 informing them that I have made an item go dark. Q. Do you remember sending this e-mail of Exhibit 38? 11 A. I do. 12 Q. And why did you send this e-mail to Alexis 13 Rossi at -- why did you send this e-mail to Alexis 14 Rossi on June 11, 2014? 15 16 17 18 A. on the Internet Archive. Q. MR. BRIDGES: 23 24 25 Objection. May lack competence. 21 22 And Alexis Rossi is an employee of Internet Archive? 19 20 Alexis is responsible for the collections THE WITNESS: She is. BY MR. HUDIS: Q. And in your e-mail you carbon copy to collections-service@Archive.org. Why did you add this e-mail address as a cc Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 306 1 in your e-mail to Alexis Rossi? 2 A. Because that's the proper address to inform 3 the Internet Archive about matters pertaining to a 4 collection. 5 6 Q. And what do you mean by matters relating to a collection? 7 A. If you have technical problems with your 8 collection or other issues or problems, that would 9 be the address that you would write to. 10 11 Q. URL. And at the end of this e-mail there's a Do you see that? 12 A. I do. 13 Q. And it ends with AERA.standards.1999? 14 A. I see that. 15 Q. All right. Is this the URL where you 16 posted the 1999 standards on Internet Archive's 17 website? 18 A. It is. 19 Q. Mr. Malamud, if Public.Resource succeeds in 20 this lawsuit brought by AERA and its co-plaintiffs, 21 will Public.Resource repost the 1999 standards on 22 its website? 23 MR. BRIDGES: Objection. 24 THE WITNESS: I guess I'd have to read the 25 Hypothetical. decision and make my determination based on that. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 307 1 2 BY MR. HUDIS: Q. Well, if you're totally successful? 3 MR. BRIDGES: Again, hypothetical. 4 THE WITNESS: Our goal is to post all 5 standards incorporated by reference into the Code 6 of Federal Regulations. 7 BY MR. HUDIS: 8 9 Q. So yes. If Public.Resource is successful in this litigation, how easy or difficult would it be for 10 you to repost the 1999 standards on 11 Public.Resource's website? 12 MR. BRIDGES: Hypothetical; lacks 13 foundation; assumes facts not in evidence; vague 14 and ambiguous; compound. 15 16 17 THE WITNESS: It wouldn't be difficult. BY MR. HUDIS: Q. If the next version of the Standards on 18 Educational and Psychological Testing, the 2014 19 version, is ever incorporated by reference by a 20 state or federal agency, will you post that version 21 of the standards to the Internet as well? 22 23 24 25 MR. BRIDGES: Objection. Hypothetical; compound; vague and ambiguous. THE WITNESS: I don't know. BY MR. HUDIS: Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 308 1 Q. 2 3 How would you make that determination? MR. BRIDGES: Objection. May call for speculation; vague and ambiguous; argumentative. 4 THE WITNESS: I would want to look at the 5 specific nature of the incorporation by reference. 6 I would want to look at that specific standard, and 7 I'd want to make a determination if that was an 8 area that I wanted to continue to invest resources 9 in. So I don't know. 10 specifics. 11 It would depend on the BY MR. HUDIS: 12 Q. If you looked at the 2014 standards and 13 made a determination that it was an area in which 14 you wanted to continue to invest resources, if 15 Public.Resource is successful in this litigation 16 and the 2014 standards are incorporated by 17 reference by a state or federal agency, would you 18 post the 2014 standards to the Internet? 19 20 21 22 23 MR. BRIDGES: Entirely hypothetical; lacks foundation; argumentative; vague and ambiguous. THE WITNESS: So I really don't know about the states. If the federal government did a deliberate 24 and explicit incorporation by reference in what I 25 felt was a substantive rule, right, not an offhand Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 309 1 thing, then I would certainly consider strongly 2 posting that document. 3 BY MR. HUDIS: 4 5 6 7 8 9 10 Q. What is -- what distinction do you make between substantive and offhand? A. I look for an explicit and deliberate incorporation by reference. Q. If I asked you this before, Mr. Malamud, and certainly your counsel will tell me, I apologize. 11 Even though the 1999 standards have been 12 removed from public view on Public.Resource's 13 website, is the digital file containing the text of 14 the 1999 standards still stored somewhere on 15 Public.Resource's computer systems? 16 17 MR. BRIDGES: 20 Vague and ambiguous. 18 19 Objection. THE WITNESS: Yes. BY MR. HUDIS: Q. Even though the 1999 standards were removed 21 from public view on Internet Archive's website, to 22 the best of your knowledge is the digital file 23 containing the text of the 1999 standards still 24 stored somewhere on Internet Archive's computer 25 systems? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 310 1 A. 2 I do not -- 3 MR. BRIDGES: Same objection. Vague and ambiguous. 4 THE WITNESS: I don't -- 5 MR. BRIDGES: And lacks foun -- I'm sorry. 6 THE WITNESS: I'm sorry. 7 MR. BRIDGES: And maybe competence and may 8 call for speculation. 9 10 THE WITNESS: document. 11 12 13 I do not have access to that And so I do not know. (PLAINTIFFS' EXHIBIT 39 WAS MARKED.) BY MR. HUDIS: Q. Mr. Malamud, I show you what's been marked 14 as Exhibit 39 bearing production number 15 AERA_APA_NCME 5129. 16 Do you recognize this document? 17 A. I do. 18 Q. What is this document of Exhibit 39? 19 A. It is a take-down notice from John S. 20 Neikirk. 21 Q. I believe he pronounces it Neikirk. 22 A. I've never met the gentleman. 23 Q. Do you have any reason to doubt the 24 25 authenticity of Exhibit 39? MR. BRIDGES: Objection. Lacks foundation. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 311 1 2 3 4 THE WITNESS: I do not. BY MR. HUDIS: Q. Do you recall receiving this e-mail from Mr. Neikirk? 5 A. I do. 6 Q. When you received this e-mail from 7 Mr. Neikirk, do you know with which organization he 8 was affiliated? 9 MR. BRIDGES: Objection. You're asking 10 him -- sorry. 11 speculation; lacks personal knowledge. 12 Objection. THE WITNESS: Competence; may call for His signature line said 13 American Educational Research Association. 14 BY MR. HUDIS: 15 16 Q. And do you remember receiving this e-mail of Exhibit 39 -- 17 A. I do. 18 Q. -- from Mr. Neikirk? 19 A. I received this e-mail, yes. 20 Q. What did you do in response to 21 22 23 24 25 Mr. Neikirk's e-mail? MR. BRIDGES: Objection. Argumentative; lacks foundation. THE WITNESS: I sent him a letter a couple days later. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 312 1 2 BY MR. HUDIS: Q. In either December 2013 or January 2014 did 3 you consult with counsel after receiving 4 Mr. Neikirk's e-mail? 5 MR. BRIDGES: Objection. That's -- 6 contains the -- an implication that the 7 consultation would be regarding the e-mail. 8 Further, the question calls for 9 attorney-client privileged information. 10 I instruct the witness not to answer. 11 Objection. BY MR. HUDIS: 12 Q. In either December 2013 or January 2014 did 13 you remove the 1999 standards from public view 14 where you had posted them on the Internet? 15 MR. BRIDGES: 16 ambiguous; lacks foundation. 17 THE WITNESS: 18 19 20 21 Objection. Vague and I did not. BY MR. HUDIS: Q. Did you reply to Mr. Neikirk's e-mail? MR. BRIDGES: Objection. I think that's asked and answered. 22 THE WITNESS: Yes, I did. 23 MR. BRIDGES: Vague and ambiguous and 24 argumentative. 25 BY MR. HUDIS: Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 313 1 2 3 Q. responded to Mr. Neikirk's e-mail of Exhibit 39? A. 4 5 6 Do you remember -- do you remember when you I believe it was on December 19th. (PLAINTIFFS' EXHIBIT 40 WAS MARKED.) BY MR. HUDIS: Q. Mr. Malamud, I show you what has been 7 marked as Exhibit 40 bearing production numbers 8 AERA_APA_NCME 5127 through 5128. 9 Do you recognize Exhibit 40? 10 A. I do. 11 Q. Is Exhibit 40 your response to 12 Mr. Neikirk's e-mail of Exhibit 39? 13 A. It is. 14 Q. Is this your digital signature at the 15 bottom of the second page of the letter of Exhibit 16 39 on page 5128? 17 18 MR. BRIDGES: 21 22 Misformed question; lacks foundation. 19 20 Objection. THE WITNESS: It is. BY MR. HUDIS: Q. Did anyone -MR. BRIDGES: Sorry, I'll ask the witness 23 to listen carefully to the question. 24 question about Exhibit 39. 25 MR. HUDIS: That was a Thank you, Counsel. Alderson Reporting Company 1-800-FOR-DEPO I Carl Malamud May 12, 2015 San Francisco, CA Page 314 1 appreciate it. 2 BY MR. HUDIS: 3 Q. Is this your digital signature at the 4 bottom of the second page of the letter of Exhibit 5 40, page 5128? 6 A. Yes, it is. 7 Q. Did anyone help you write this letter of 8 Exhibit 40? 9 MR. BRIDGES: Objection. To the extent 10 this calls for an implicit revelation of 11 attorney-client communications, I would object on 12 the grounds that it's privileged, and I would 13 instruct the witness not to answer. 14 that extent. 15 THE WITNESS: 16 I'm not going to be able to answer that question. 17 But only to BY MR. HUDIS: 18 Q. In the first paragraph of Exhibit 40 on the 19 first page, there is a word missing. 20 should say, "I am in." 21 A. Q. All right. Do you see that? I do. 22 I believe it 23 24 25 So I'm going to read the sentence with the word "in" in it. "Dear Mr. Neikirk, I am in receipt of your communication of December 16 regarding the Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 315 1 publication of the AERA publication standard for 2 Educational and Psychological Testing," in parens 3 1999, at 4 HTTPS//Law.Resource.Org/pub/US/US/IBR/001/AERA. 5 standards.1999.PDF." 6 "We are responsible for uploading this 7 document. 8 at HTTPS://archive.org/details/thegov.law.AERA. 9 standards.1999." In addition, you will find this document 10 Do you see that? 11 MR. BRIDGES: Objection. THE WITNESS: I do. 12 letter. 13 14 15 Misquotes the BY MR. HUDIS: Q. Specifically in this first paragraph what 16 did you mean when you used the term "publication" 17 the first time it appears in the sentence? 18 MR. BRIDGES: Objection to the extent it 19 may imply a legal conclusion or legal expertise or 20 opinion; vague and ambiguous. 21 THE WITNESS: 22 this sentence. 23 There's a couple typos in BY MR. HUDIS: 24 25 Q. I meant posting. All right. So when you used the term publication, you meant posting? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 316 1 A. In this sentence, yes. 2 Q. What did you mean by "We are responsible 3 4 5 for uploading this document"? A. It meant that I was the person that uploaded that document. 6 Q. To where? 7 A. Yes, that's what the -- The two URLs in that paragraph? 8 MR. BRIDGES: Object. 9 THE WITNESS: Sorry. 10 MR. BRIDGES: Objection. 11 vague and ambiguous. 12 THE WITNESS: 13 14 15 Lacks foundation; Yes. BY MR. HUDIS: Q. If you could on Exhibit 40 please go on page 5127 to the third paragraph. 16 A. Okay. 17 Q. And I will read the first sentence. "While 18 the standards drafted by the American Educational 19 Research Association were entitled to copyright 20 protection when issued, once they were incorporated 21 into regulations, these standards became the law, 22 and thus, have entered the public domain." 23 Do you see that? 24 A. I do. 25 Q. What did you mean when you said, "the Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 317 1 standards drafted by the American Educational 2 Research Association were entitled to copyright 3 protection when issued"? 4 MR. BRIDGES: Objection to the extent it 5 calls for a legal opinion; legal expertise; legal 6 conclusion; vague and ambiguous; lacks foundation. 7 THE WITNESS: 8 one thing. 9 no copyright. So I'm not a lawyer. I know That the law in the United States has And thus a standard incorporated by 10 reference into the Code of Federal Regulations has 11 no copyright. 12 BY MR. HUDIS: 13 Q. Mr. Malamud, could you turn to the next 14 page of Exhibit 40. 15 your attention to the last paragraph of the letter. 16 Page 5128. And I am directing As you can see by looking at the document 17 in question, a cover sheet has been prepended 18 clearly spelling out the section of the Code of 19 Federal Regulations that has incorporated by 20 reference this document into law. 21 Do you see that? 22 A. I do. 23 Q. And referring you back to Exhibit 34, is 24 this the cover sheet to which you were referring in 25 your letter of Exhibit 40? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 318 1 A. 34? 2 Q. Yes. 3 A. Yes, it is. 4 Q. Mr. Malamud, at the end of your letter of 5 Exhibit 40, did you decline to remove the 1999 6 standards from the websites where you posted the 7 document on the Internet? 8 9 MR. BRIDGES: Objection. Are you asking him if that's what the letter says? 10 MR. HUDIS: 11 MR. BRIDGES: 12 MR. HUDIS: Or are you asking him something -- okay. 13 Yes. 14 No. Yes. Yes, I am asking him if that's what the letter says. 15 MR. BRIDGES: The letter -- objection. 16 letter speaks for itself. 17 The itself. 18 THE WITNESS: The document speaks for The letter says, "We 19 respectfully decline to remove this document." 20 BY MR. HUDIS: 21 Q. At the end of your letter of Exhibit 40, 22 did you also decline to seek permission from anyone 23 to post the 1999 standards on the Internet? 24 25 MR. BRIDGES: Objection. Argumentative; lacks foundation; vague and ambiguous. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 319 1 THE WITNESS: The letter states, "We 2 respectfully decline to request permission." 3 BY MR. HUDIS: 4 Q. Mr. Malamud, had Mr. Neikirk sent you his 5 e-mail of Exhibit 39 a year earlier in 2012, would 6 Public.Resource have removed the 1999 standards 7 from where you posted the document on the Internet? 8 9 MR. BRIDGES: Objection. A hypothetical; calls for speculation; vague and ambiguous. 10 THE WITNESS: So you're asking if the date 11 of his letter was December 19th, 2012, we would 12 have changed our answer? 13 BY MR. HUDIS: 14 Q. Correct. 15 MR. BRIDGES: Same objections. 16 THE WITNESS: No. 17 (PLAINTIFFS' EXHIBIT 41 WAS MARKED.) 18 19 20 BY MR. HUDIS: Q. Mr. Malamud, I show you a document marked Exhibit 41 bearing production number PROAERA 810. 21 Do you recognize the document? 22 A. I do. 23 Q. What is this document? 24 A. It is -- it's an incomplete electronic 25 mail. So it is a electronic mail from me to Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 320 1 2 Mr. Butler at the Internet Archive. Q. All right. So Mr. -- to the best of your 3 knowledge Mr. Butler, Christopher Butler, is an 4 employee of Internet Archive? 5 A. 6 7 MR. BRIDGES: sorry. 8 9 10 11 I believe -- Objection. Objection. Calls for -- Lacks competence. THE WITNESS: Yes. BY MR. HUDIS: Q. And you cc'd Brewster -- how do you pronounce that? 12 A. Kahle. 13 Q. Kahle. 14 And you cc'd Brewster Kahle in your e-mail to Mr. Butler of Exhibit 41? 15 A. I did. 16 Q. And who is Brewster Kahle? 17 A. He is the founder and librarian of the 18 19 20 21 Internet Archive. Q. What, if anything, was attached to this e-mail of Exhibit 41? MR. BRIDGES: 22 speculate. 23 I instruct the witness not to speculation. 24 25 I object to the extent it calls for THE WITNESS: The attachments line in the header says AERA.org, and a date. So this appears Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 321 1 to be the correspondence with Mr. Neikirk. 2 BY MR. HUDIS: 3 Q. 4 39 and 40? 5 A. Based on the file names, I would say yes. 6 Q. Why did you send this e-mail of Exhibit 41 7 8 9 10 And is that the correspondence of exhibits to Mr. Butler at the Internet Archive? A. Because I keep Mr. Butler informed on any take-down activity, and he keeps me informed on any take-down activity. 11 Q. What do you mean by take-down activity? 12 A. A letter invoking the DMCA or otherwise 13 14 complaining about copyright violations. Q. At this time in December 2013 did you make 15 the 1999 standards go dark on Internet Archive's 16 website? 17 MR. BRIDGES: 18 vague and ambiguous. 19 THE WITNESS: 20 21 22 23 24 25 Objection. Lacks foundation; No, I did not. BY MR. HUDIS: Q. Why not? MR. BRIDGES: Objection. Argumentative; lacks foundation; vague and ambiguous. THE WITNESS: Because I did not believe there was any copyright violation involved. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 322 1 2 BY MR. HUDIS: Q. So after you refused to remove the 1999 3 standards from public view on the Internet in 4 December 2013, why did you then remove the 1999 5 standards from public view on Public.Resource's 6 website and the Internet Archive's website in June 7 2014? 8 9 MR. BRIDGES: Objection. To the extent the question might call for disclosure of 10 attorney-client privileged communications, I would 11 object on the grounds of privilege and instruct the 12 witness not to answer. 13 If he can answer beyond that objection and 14 instruction, he may. 15 THE WITNESS: That would involve 16 discussions with counsel. 17 that question. 18 19 20 I'm not going to answer (PLAINTIFFS' EXHIBIT 42 WAS MARKED.) BY MR. HUDIS: Q. Mr. Malamud, I show you what's been marked 21 as Exhibit 42 bearing production numbers PROAERA 22 820 and PROAERA 821. 23 Do you recognize the document? 24 A. I do. 25 Q. Do you have any reason to doubt the Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 323 1 authenticity of Exhibit 42? 2 MR. BRIDGES: 3 ambiguous; lacks foundation. 4 THE WITNESS: 5 Vague and I do not. BY MR. HUDIS: 6 7 Objection. Q. Do you remember receiving this e-mail of Exhibit 42 from me on June 10th, 2014? 8 A. I do. 9 Q. What did you do after receiving this e-mail 10 of Exhibit 42? 11 MR. BRIDGES: Objection. To the extent 12 this question calls for an answer that would 13 disclose attorney-client communications, I would 14 object on the grounds of privilege and instruct the 15 witness not to answer. 16 In addition, it's vague and ambiguous and 17 lacks foundation. 18 BY MR. HUDIS: 19 Q. Can you answer my question, Mr. Malamud, 20 without revealing the substance of attorney-client 21 communications? 22 A. No. 23 Q. Mr. Malamud, could you return to Exhibit 24 38. 25 Alexis Rossi the day after receiving my e-mail of Why did you send the e-mail of Exhibit 38 to Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 324 1 Exhibit 42? 2 3 MR. BRIDGES: THE WITNESS: (PLAINTIFFS' EXHIBIT 43 WAS MARKED.) BY MR. HUDIS: 8 9 Because that was the day that I made that item go dark. 6 7 Asked and answered, and argumentative and lacks foundation. 4 5 Object. Q. Mr. Malamud, I show you what's been marked as Exhibit 43. 10 Do you recognize this document? 11 A. I do. 12 Q. What is this document of Exhibit 43? 13 A. This is a memorandum concerning the posting 14 of the standards at issue. 15 16 Q. Is that your signature at the bottom left of Exhibit 43? 17 A. It is. 18 Q. Did anyone help you write this memo Exhibit 19 43? 20 MR. BRIDGES: Objection. To the extent the 21 question calls for disclosure of attorney-client 22 communications, I would object on the grounds of 23 privilege and would instruct the witness not to 24 answer. 25 THE WITNESS: I'll be unable to answer that Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 325 1 question. 2 BY MR. HUDIS: 3 4 Q. Who was this memo of Exhibit 43 intended for? 5 MR. BRIDGES: Objection. 6 THE WITNESS: I believe it was for you. 7 Lacks foundation. BY MR. HUDIS: 8 Q. "You," meaning me, plaintiff's counsel? 9 A. Plaintiffs. 10 Q. Thank you. 11 Mr. Malamud, could you read the first 12 paragraph of the memo to yourself. 13 you're done. Tell me when 14 A. Okay. 15 Q. I am not going to read the whole paragraph. 16 "This memorandum is in reference to the lawsuit 17 named above," and I'm skipping, "and specifically 18 in response to the stated intention to file a 19 preliminary injunction motion." 20 21 22 23 24 25 What did you mean? A. Well, I believe you had said you were going to file a preliminary injunction motion. Q. And I will read in full the second sentence of the second paragraph of Exhibit 43. "Public.Resource also believes that this Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 326 1 case deserves the Court's fullest attention without 2 a rush to reach an interim ruling in the absence of 3 a full record." 4 What did you mean by that? 5 MR. BRIDGES: 6 vague and ambiguous. 7 THE WITNESS: Objection. Lacks foundation; As I state in the next 8 paragraph, "In order to focus this case on 9 developing an appropriate record for a decision on 10 the merits, Public.Resource.Org has voluntarily 11 removed the document in question from the websites 12 under its control." 13 And as you had stated in a previous 14 sentence, this was so it was done without a rush to 15 reach an interim ruling in the absence of a full 16 record. 17 BY MR. HUDIS: 18 Q. I'd like to now direct your attention, 19 Mr. Malamud, to the fourth paragraph of Exhibit 43. 20 And it says, "Until the conclusion at trial on the 21 merits in this case, Public.Resource.Org will keep 22 the document in question off of the websites under 23 its control and will not disseminate the document 24 in whole or in part, including any revisions, and 25 will maintain the status on the Internet Archive to Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 327 1 prevent any public access to the document from the 2 archive's websites." 3 MR. BRIDGES: 4 7 THE WITNESS: 10 The document I do. BY MR. HUDIS: Q. 8 9 Objection. speaks for itself. 5 6 Do you see that? What did you mean by that sentence? MR. BRIDGES: Objection. The document speaks for itself; lacks foundation; vague and ambiguous; argumentative. 11 THE WITNESS: 12 clear; right? 13 I think the sentence is very BY MR. HUDIS: 14 Q. What did you mean? 15 A. I meant "Until the conclusion of trial on 16 the merits of this case, Public.Resource.Org will 17 keep the document in question off of the websites 18 under its control and will not disseminate the 19 document in whole or in part, including any 20 revisions, and will maintain the status on the 21 Internet Archive to prevent any public access to 22 the document from the archive's websites." 23 24 25 Q. And this memo was written by you on June 12th, 2014? MR. BRIDGES: Objection. Lacks foundation; Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 328 1 vague and ambiguous. 2 THE WITNESS: 3 4 Yes. BY MR. HUDIS: Q. Since the time of this memo of Exhibit 43, 5 have the 1999 standards been reposted to a website 6 under Public.Resource's control? 7 8 MR. BRIDGES: Vague and ambiguous; argumentative. 9 10 Objection. THE WITNESS: Yes. BY MR. HUDIS: 11 Q. Why? 12 A. There was a technical malfunction in one of 13 our servers and by mistake a copy of the full 14 standard was posted in place of the stub. 15 Q. And when was that? 16 A. That was in January 2015. 17 Q. Mr. Malamud, during the two-year period 18 that the 1999 standards were posted to 19 Public.Resource's website, was a record kept of how 20 many Internet users viewed or accessed the 21 standards from that website location? 22 MR. BRIDGES: Objection. Utterly lacks 23 foundation; argumentative; vague and ambiguous, 24 and -- yeah. 25 And competence. THE WITNESS: Our server log's document Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 329 1 retention policy was a two-week window until 2 litigation commenced in the ASTM case when we began 3 keeping the logs permanently. 4 not keep a record prior to that. 5 BY MR. HUDIS: 6 7 Q. 10 Do you know the earliest date on which you kept such logs? 8 9 And so we -- we did MR. BRIDGES: Objection. Again, lacks foundation; argumentative; vague and ambiguous and competence. 11 THE WITNESS: So again, the document 12 retention policy was a two-week window on the logs, 13 and in September -- August or September of 2013 we 14 changed that policy because litigation had 15 commenced. 16 the logs permanently. 17 BY MR. HUDIS: 18 Q. 19 And so at that point we began keeping And do you still have those logs today? MR. BRIDGES: Same objections. I think I 20 missed a compound objection to the underlying 21 question. 22 23 24 25 THE WITNESS: Yes. BY MR. HUDIS: Q. In what form are the logs kept? MR. BRIDGES: Same objections. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 330 1 THE WITNESS: In log format. 2 Apache web server log format. 3 Standard. BY MR. HUDIS: 4 5 Q. Are they kept in print format or electronic format? 6 MR. BRIDGES: Same objections. 7 THE WITNESS: Electronic. 8 BY MR. HUDIS: 9 10 11 Q. Has Public.Resource produced these logs to us? MR. BRIDGES: Objection. Competence; may 12 call for speculation; may call for some form of 13 legal conclusion; vague and ambiguous. 14 THE WITNESS: 15 MR. HUDIS: No, we did not. Counsel, we've had discussions 16 about this. 17 provide documentation of the information 18 Public.Resource gave us in its amended response to 19 interrogatory number 6. 20 We're again demanding the logs that MR. BRIDGES: I believe that there's a 21 motion to compel pending. 22 issue, Mr. Hudis? 23 MR. HUDIS: 24 MR. BRIDGES: 25 Am I correct on that You are correct. And I believe we gave you an opportunity to -- first of all, I believe that this Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 331 1 was mentioned for the first time in your reply 2 brief; is that correct? 3 MR. HUDIS: 4 MR. BRIDGES: That's not correct. That's my understanding. 5 That motion has been pending, and you elected to 6 proceed with this deposition in the absence of a 7 ruling on that motion to compel. 8 9 I'm not sure what you mean by the fact that you are demanding the logs. You have chosen to 10 proceed with this deposition in the absence of a 11 ruling on that motion. 12 demand appears to be moot. 13 is before the court. 14 BY MR. HUDIS: 15 16 Q. And so the demand -- your It is a question that Mr. Malamud, I'd like you to turn your attention back to Exhibit Number 29. 17 A. Okay. 18 Q. Does Public.Resource's answer to exhibit -- 19 to interrogatory number 6, accurately state the 20 number of Internet users who viewed or accessed the 21 1999 standards posted to Public.Resource's website 22 from June 2013 to October 2014? 23 MR. BRIDGES: Objection. That objection -- 24 that interrogatory is itself subject to a number of 25 objections, and is a competence issue, and it's Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 332 1 vague and ambiguous; may lack foundation. 2 Are you asking him if that's what the 3 interrogatory says? 4 that is his memory sitting here today? 5 know where you're going, what you're looking for. 6 MR. HUDIS: Or are you asking him whether Sure. I'd like to I want to know whether 7 Mr. Malamud, in looking at the answer to 8 interrogatory number 6, can verify the accuracy of 9 the information provided. 10 MR. BRIDGES: The verification was 11 furnished on page 16 of Exhibit 29 at the time of 12 the response. 13 independent memory today? Are you asking him if this is his 14 MR. HUDIS: 15 MR. BRIDGES: Yes. Objection. Objection. You 16 can ask him the questions of what -- what numbers 17 he believes there are independently. 18 If you're -- if you're asking him to look 19 at the document, then you need to find out if it 20 refreshes an independent recollection. 21 BY MR. HUDIS: 22 Q. Mr. Malamud, does the answer in 23 interrogatory number 6 refresh your independent 24 recollection of the number of Internet users who 25 viewed or accessed the 1999 standards posted to Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 333 1 Public.Resource's website from June 2013 to October 2 2014? 3 MR. BRIDGES: Objection. The same 4 objections on vagueness, and lacks foundation and 5 argumentativeness. 6 THE WITNESS: And so again, the document 7 retention policy was a two-week policy until that 8 period in August when litigation commenced. 9 The standard at issue was removed in June 10 of 2014. 11 the answer, is, in fact, a complete record from 12 September of 2013 to June of 2014. 13 BY MR. HUDIS: 14 Q. And so this interrogatory, as it says in So then with respect to the number of FTP 15 requests for the file name AERA.standards.1999.PDF, 16 why does the information go back to June of 2013? 17 A. Because we had an FTP log hanging around 18 that was not conforming with our document retention 19 policy, and since that data was there, we furnished 20 it to you. 21 Q. So now I'd like to take you one at a time 22 as to the information provided in interrogatory -- 23 answer -- amended interrogatory answer number 6. 24 25 Mr. Malamud, on page 9, the information is stated as the number of HTTP requests. Alderson Reporting Company 1-800-FOR-DEPO Do you see Carl Malamud May 12, 2015 San Francisco, CA Page 334 1 that? 2 A. Yes. 3 Q. All right. 4 represent? 5 6 What do these numbers MR. BRIDGES: speaks for itself. Objection. The document It's been verified. 7 THE WITNESS: It's the number -- 8 MR. BRIDGES: If he's testifying -- it's 9 10 not clear whether you're asking him to explain this document or to give percipient testimony. 11 MR. HUDIS: 12 MR. BRIDGES: 13 14 To explain the document. Objection. BY MR. HUDIS: Q. 15 So what -MR. BRIDGES: Objection on the grounds that 16 it lacks foundation; vague and ambiguous; 17 misleading and fails to account for objections, and 18 the document speaks for itself. 19 BY MR. HUDIS: 20 21 Q. So what do these numbers represent in HTTP requests? 22 MR. BRIDGES: Same objections. 23 THE WITNESS: The number of accesses to the 24 standards at issue using the HTTP protocol. 25 BY MR. HUDIS: Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 335 1 Q. By month and year? 2 MR. BRIDGES: Same objections. 3 THE WITNESS: Yes. 4 5 6 BY MR. HUDIS: Q. Okay. And what do the numbers of H -- of FTP requests represent? 7 MR. BRIDGES: Same objections. 8 THE WITNESS: Number of file transfers by 9 10 month and year. BY MR. HUDIS: 11 Q. 12 represent? 13 14 And what do the number of rsync requests MR. BRIDGES: Objection. The document -- same objections and the document speaks for itself. 15 THE WITNESS: 16 month and year. 17 Number of rsync accesses by BY MR. HUDIS: 18 Q. So if there are accountings of HTTP 19 requests or FTP requests in interrogatory answer 20 number -- amended interrogatory answer number 6 21 after June of 2014, were those requests for the 22 stub document? 23 24 25 A. That's correct. MR. HUDIS: Andrew, he's got to change the video, so we're off. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 336 1 THE VIDEOGRAPHER: This marks the end of 2 Disc 4, Volume 1 in the deposition of Carl Malamud. 3 The time is 6:38 and we are off the record. 4 (Recess taken.) 5 THE VIDEOGRAPHER: This marks the beginning 6 of Disc 5, Volume 1 in the deposition of Carl 7 Malamud. 8 9 10 11 The time is 6:46, and we are on the record. BY MR. HUDIS: Q. Mr. Malamud, in your last answer we discussed referrals to the stub document. 12 Is that the document of Exhibit 37? 13 A. It is. 14 Q. Mr. Malamud, during the two-year period 15 that the 1999 standards were posted by you to 16 Internet Archive's website, do you know whether a 17 record was kept of how many Internet users viewed 18 or accessed the standards from that website? 19 20 MR. BRIDGES: Objection. Vague and ambiguous. 21 THE WITNESS: 22 record. 23 I don't know if they kept a believe was there. 24 25 There is a view count number that I (PLAINTIFFS' EXHIBIT 44 WAS MARKED.) BY MR. HUDIS: Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 337 1 Q. Mr. Malamud, I show you a document that has 2 been marked as Exhibit 44 bearing a single 3 production number PROAERA 827, and it says, "This 4 document has been produced in native format." 5 what follows it looks like an Excel spreadsheet. 6 So Do you see that? 7 A. I do. 8 Q. Do you know what this document is, Exhibit A. I'm not totally sure. 9 10 44? 11 12 MR. BRIDGES: Object on the grounds of competence and may call for speculation. 13 THE WITNESS: Was this a document produced 14 by us or the Internet Archive? 15 BY MR. HUDIS: 16 Q. It was produced by your counsel. 17 A. It appears -- 18 MR. BRIDGES: 19 testify as to what he knows. 20 MR. HUDIS: 21 THE WITNESS: I'll direct the witness to Fair enough, Counsel. Well, this is a spreadsheet. 22 I can tell you what -- what I see here on this 23 document, if that's useful to you. 24 BY MR. HUDIS: 25 Q. Please. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 338 1 A. It's a spreadsheet that's got a series of 2 identifiers and downloads as well as the title 3 creator of documents. 4 incorporated by reference. 5 field. 6 Q. 7 And there is a date Mr. Malamud, to the best of your knowledge what does the creator column represent? 8 9 Clearly documents MR. BRIDGES: Objection. Competence; may call for speculation. 10 THE WITNESS: This is clearly a set of 11 technical standards incorporated by reference, and 12 so the creator is the original creator of the 13 standard. 14 BY MR. HUDIS: 15 16 Q. And then there is a title. Do you know -- do you know what the date column represents? 17 MR. BRIDGES: I'd ask the witness -- object 18 to the extent I think the witness may not be 19 competent and this may call for speculation. 20 THE WITNESS: 21 field says. 22 I don't know what the date BY MR. HUDIS: 23 24 25 Q. Do you know what the downloads column represents? MR. BRIDGES: Objection. Competence; vague Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 339 1 and ambiguous; may call for speculation -- or calls 2 for speculation. 3 THE WITNESS: 4 sir. 5 I -- I remember. 6 Yeah, I'd have to speculate, BY MR. HUDIS: 7 8 I'm sorry. Q. So no. Do you know what the identifier column represents? 9 10 This is just not a document that MR. BRIDGES: Objection. Competence; calls for speculation. 11 THE WITNESS: That is the naming scheme 12 that I used for Internet Archive identifiers. 13 BY MR. HUDIS: 14 15 Q. represents? 16 17 Do you know what the title column MR. BRIDGES: Objection. Competence; may call for speculation; vague and ambiguous. 18 THE WITNESS: Yeah, that's what I had 19 explained previously, that this appears to be a 20 listing of standards incorporated by reference, and 21 so there's the creator and the name -- the title of 22 the document. 23 BY MR. HUDIS: 24 25 Q. Do you know the source of this document of Exhibit 44? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 340 1 2 MR. BRIDGES: Objection. I think that may be asked and answered. 3 THE WITNESS: No, I do not. 4 said, I do not recall this. 5 I -- like I BY MR. HUDIS: 6 Q. 7 8 That -- Do you know who created this document? MR. BRIDGES: Objection. Competence; calls for speculation. 9 THE WITNESS: 10 document. 11 I simply don't recall this BY MR. HUDIS: 12 13 14 15 16 Q. Mr. Malamud, if you would turn to the bottom of the first spreadsheet page of Exhibit 44. A. Reads American Architectural Manufacturers Association? Q. No. It -- so for the -- for the page I'm 17 looking at of Exhibit 44, it says American 18 Educational Research Association. 19 MR. BRIDGES: That's not -- that's not the 20 case on our -- on our exhibits. 21 BY MR. HUDIS: 22 23 24 25 Q. Could you find on the document American Educational Research Association? A. Yes. It's on page 2 in the middle of the page. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 341 1 Q. Thank you. If you go to -- on that row, if 2 you go to the identifier. 3 gov.log.AERA.standards. 99 -- dot 1999, is that the 4 identifier that you used for the 1999 standards 5 that you posted to the Internet Archive? 6 7 MR. BRIDGES: 10 11 Objection. Vague and ambiguous; may call for speculation. 8 9 Is that -- is THE WITNESS: It is. BY MR. HUDIS: Q. Do you believe that Exhibit 44 came from the Internet Archive? 12 MR. BRIDGES: Objection. 13 speculation; competence. 14 know where this came from. 15 Calls for before. 16 THE WITNESS: 17 He hasn't seen it I really don't recollect this spreadsheet. 18 He's testified he doesn't BY MR. HUDIS: 19 Q. Mr. Malamud, we had asked Public 20 research -- Resource to search for and produce 21 materials relating to its posting or publication of 22 the 1999 standards on one of its websites. 23 materials did you search for? 24 25 MR. BRIDGES: Objection. What May call for attorney-client communications, in which case it Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 342 1 would be privileged, and I would object on the 2 grounds of privilege, and I would instruct the 3 witness not to answer. 4 If you're asking what Mr. Malamud -- it's 5 also vague and ambiguous; lacks foundation. 6 BY MR. HUDIS: 7 Q. I'd like to know, Mr. Malamud, what records 8 you searched for, independent of your discussions 9 with counsel? 10 11 MR. BRIDGES: All the other objections still apply. 12 THE WITNESS: Having to do with the posting 13 of the standards on Public.Resource.Org websites? 14 BY MR. HUDIS: 15 Q. Yes. 16 MR. BRIDGES: Same objections. 17 THE WITNESS: Well, we've gone over that 18 process of the posting of the standards at issue on 19 the Law.Resource.org website. 20 BY MR. HUDIS: 21 22 23 24 25 Q. What I want to know is what documents did you search for? MR. BRIDGES: Objection. Argumentative; lacks foundation; vague and ambiguous. THE WITNESS: Well, the number of accesses Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 343 1 information I searched are logs, and computed the 2 number of accesses per month based on the criteria 3 that I indicated in the interrogatory answers. 4 BY MR. HUDIS: 5 6 Q. Interrogatory -- amended interrogatory answer number 6? 7 A. That's correct. 8 Q. And what else did you search for? 9 10 MR. BRIDGES: Objection. Vague and ambiguous. 11 I think there's some confusion going on 12 here. 13 document request? You were talking about in response to a 14 MR. HUDIS: 15 MR. BRIDGES: 16 Yes. requests? 17 MR. HUDIS: 18 MR. BRIDGES: 19 I can read it to him, sure. MR. HUDIS: 21 MR. BRIDGES: 25 Mm-hm. These are interrogatories. He was asking about document requests. 23 24 You're asking what he searched for in response to a document request? 20 22 Can you show him the document THE WITNESS: The discovery process. BY MR. HUDIS: Q. Yes, sir. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 344 1 MR. BRIDGES: Searching for documents. 2 THE WITNESS: I did not conduct those 3 searches. 4 their discovery engine and they did the searches. 5 So I didn't search for anything. 6 BY MR. HUDIS: 7 Q. I gave materials to our legal team and So you said you gave the materials to your 8 legal team. 9 Public.Resource's records, what materials did you 10 What I want to know is from search for to give to your counsel? 11 I do not want to know your communications 12 with counsel. 13 searched for. I want to know the materials you 14 MR. BRIDGES: 15 MR. HUDIS: 16 MR. BRIDGES: 17 the searching. 18 legal team. 19 Here's the difficulty. Sure. I think the legal team did So ... 20 21 24 25 The legal team did the searching. MR. HUDIS: Thank you for the clarification. 22 23 He turned -- he gave access to the MR. BRIDGES: Yeah. BY MR. HUDIS: Q. Did -- Mr. Malamud, did you do any independent searches for discovery records, Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 345 1 2 independently yourself? A. No, I didn't. 3 MR. BRIDGES: 4 vague and ambiguous. 5 THE WITNESS: 6 7 Objection. Lacks foundation; No, I did not. BY MR. HUDIS: Q. So the document request, Mr. Malamud, was 8 "Produce those documents, things and/or items, 9 electronically stored information regarding 10 Public.Resource posting or publishing the 1999 11 standards to a Public.Resource website." 12 And just to clarify, you're saying that 13 your counsel did the search of Public.Resource's 14 records. You did not do that search yourself? 15 A. That's correct. 16 Q. Mr. Malamud, before or after 17 Public.Resource posted the 1999 standards to the 18 Internet, did you ever hear someone complain that 19 he or she could not obtain a copy of the 1999 20 standards on his or her own? 21 MR. BRIDGES: 22 25 Vague and ambiguous; lacks foundation; compound. 23 24 Objection. THE WITNESS: I did not. BY MR. HUDIS: Q. Before or after Public.Resource posted the Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 346 1 1999 standards to the Internet, did you ever 2 receive written correspondence complaining that 3 someone could not obtain a copy of the 1999 4 standards on his or her own? 5 MR. BRIDGES: 6 argumentative. 7 8 9 Same objections; THE WITNESS: I did not. BY MR. HUDIS: Q. During the two-year period that the 1999 10 standards were posted to Public.Resource's website, 11 was a record kept of how many Internet users 12 downloaded the standards from that website location 13 to their computer hard drives? 14 MR. BRIDGES: Objection. Lacks foundation; 15 argumentative; assumes facts not in evidence; vague 16 and ambiguous. 17 THE WITNESS: 18 determining that. 19 We would have no way of BY MR. HUDIS: 20 Q. During the two-year period that the 1999 21 standards were posted to Public.Resource's website, 22 did Public.Resource deploy any protocols or use any 23 settings on its web server to prevent Internet 24 users from downloading the 1999 standards to their 25 computer hard drives? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 347 1 MR. BRIDGES: Objection. Argumentative; 2 lacks foundation; possibly competence; vague and 3 ambiguous. 4 THE WITNESS: The only thing we know about 5 is access to the data and the fact that the data 6 left our computer in response to a request. 7 don't know about downloads. 8 impossible to determine that. 9 BY MR. HUDIS: 10 Q. So I It's technically I didn't want to -- my last question was 11 not about logging downloads. 12 is once an HTTP request or an FTP request or an 13 rsync request was made of Public.Resource's server 14 where the 1999 standards were, did Public.Resource 15 deploy any protocols or use any settings on its web 16 server to prevent Internet users from downloading 17 the 1999 standards to their computer hard drives? 18 19 MR. BRIDGES: What I wanted to know Objection. Argumentative; lacks foundation; assumes facts not in evidence. 20 THE WITNESS: 21 do that. 22 I have no idea how one would BY MR. HUDIS: 23 Q. During the two-year period that the 1999 24 standards were posted to Public.Resource's website, 25 did Public.Resource deploy any protocols or use any Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 348 1 settings on its web server to prevent Internet 2 users from printing to paper the 1999 standards 3 accessed from that website? 4 MR. BRIDGES: All the same objections, 5 plus, Mr. Hudis, I've been -- you've been prefacing 6 many of your questions with the phrase, "During the 7 two-year period that the 1999 standards were posted 8 to Public.Resource's website." 9 me that they were posted to the website for two 10 11 It's not clear to years. So every time you ask that question, I'm 12 going to object on the grounds that it lacks 13 foundation; argumentative and misstates -- it 14 misstates evidence. 15 So in addition to that, the other 16 objections apply to this question. 17 foundation; argumentative; vague and ambiguous; 18 possibly competence. 19 THE WITNESS: 20 MR. HUDIS: Mainly lacks No, we did not. Counsel, just for the record, 21 so we can avoid some disagreements, if possible, 22 interrogatory answer number 2 says the 1999 23 standard was first posted to the Law.Resource.Org 24 website on July 11, 2012. 25 1999 standard was last posted to a Public.Resource And then it says the Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 349 1 website on June 10, 2014. 2 BY MR. HUDIS: 3 Q. Mr. Malamud, during the two-year period 4 that the 1999 standards were posted to 5 Public.Resource's website, or any time after that 6 until today, did Public.Resource receive any 7 communications from people who claimed to have 8 accessed a copy of the 1999 standards from 9 Public.Resource's website? 10 MR. BRIDGES: Mr. Hudis, you've just given 11 me dates that are not two years. 12 immediately ask a question that says, "during the 13 two-year period." 14 And then you I'm not sure why you insist on using 15 two-year period, but every time you ask a question 16 that says "during the two-year period," I'm going 17 to object as misleading, misstating the facts, and 18 deceptive. 19 MR. HUDIS: 20 MR. BRIDGES: 21 MR. HUDIS: 22 23 24 25 Counsel. Yes. Would you accept an introductory phrase "approximate two-year period"? MR. BRIDGES: I will not. If you want to say, "during the period," fine. MR. HUDIS: I'll accept that. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 350 1 MR. BRIDGES: But if you want to start 2 making a characterization, I'm going to object, 3 unless it's accurate. 4 MR. HUDIS: Counsel, I'll accept that. 5 Thank you very much. 6 MR. BRIDGES: The -- there are other -- you 7 might want to restate your question because I had 8 other objections that I didn't get around to on 9 that. 10 11 BY MR. HUDIS: Q. During the period that the 1999 standards 12 were posted to Public.Resource's website, or at any 13 other time after that until today, did 14 Public.Resource receive any communications from 15 people who claimed to have accessed a copy of the 16 1999 standards from Public.Resource's website? 17 MR. BRIDGES: Objection. Lacks foundation; 18 competence; vague and ambiguous. 19 argumentative and may call for a legal conclusion 20 to the extent you were trying to give "copy" a 21 copyright term. Also And argumentative. 22 THE WITNESS: 23 MR. HUDIS: I said that. No. Counsel, instead of the word 24 "copy," would you prefer I use the term 25 reproduction? I don't want to use a charged word Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 351 1 here. 2 3 MR. BRIDGES: file containing. 4 5 6 I just want to get some information. You could use a -- accessed a I would accept that. MR. HUDIS: Thank you, Counsel. BY MR. HUDIS: Q. Does Public.Resource know what people do 7 with their files containing the 1999 standards that 8 they obtained from Public.Resource's website? 9 MR. BRIDGES: Objection. Utterly lacks 10 foundation; assumes facts not in evidence; 11 argumentative; vague and ambiguous and competence. 12 13 14 THE WITNESS: No. BY MR. HUDIS: Q. Does Public.Resource know what people do, 15 if anything, with their file containing the 1999 16 standards that they obtained from Internet 17 Archive's website after you posted the standards 18 there? 19 MR. BRIDGES: Same objections. Lacks 20 foundation; assumes facts not in evidence; 21 argumentative; vague and ambiguous; competence; 22 calls for ... 23 THE WITNESS: 24 (PLAINTIFFS' EXHIBIT 45 WAS MARKED.) 25 No. BY MR. HUDIS: Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 352 1 Q. Mr. Malamud, I show you what has been 2 marked as Exhibit 45. 3 responses to plaintiff's second set of 4 interrogatories. It is Public.Resource's 5 A. Okay. 6 Q. Is that your signature at the bottom of 7 8 page 10? A. 9 It is. MR. BRIDGES: I'm sorry. Whoa. 10 MR. HUDIS: 11 MR. BRIDGES: No, it's not okay. 12 THE WITNESS: There's two page 10s. Everything okay, Counsel? The 13 document goes up to 12 and then there is a 10 at 14 the end. 15 16 MR. HUDIS: Mm-hm. That's how it was given to us. 17 18 Is it the same on your copy? Counsel, should we stay on the record or go off the record? 19 MR. BRIDGES: 20 I think you can get his testimony that's We'll stay on the record. 21 his signature on the final page of Exhibit 45. 22 BY MR. HUDIS: 23 24 25 Q. Sure. Mr. Malamud, is that your signature on the final page of Exhibit 45? A. It is. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 353 1 Q. Now, Mr. Malamud, I'd like you to read 2 Public.Resource's answers to interrogatory numbers 3 9 and 11. 4 record. 5 with the information contained in those 6 interrogatory answers. You don't have to read them into the I just want you to familiarize yourself Tell me when you're done. 7 A. 9 and 11 or 9 and 10? 8 Q. 9 and 11. 9 A. Okay. 10 11 Okay. Q. Do interrogatory answers numbers 9 and 11 12 identify all of the state and federal regulations 13 of which Public.Resource is currently aware in 14 which the 1999 standards have been incorporated by 15 reference? 16 MR. BRIDGES: Objection. Competence, in 17 terms of recalling all of the instances that may 18 exist; vague and ambiguous; may call for a legal 19 conclusion. 20 THE WITNESS: I would have to disclose 21 communications with counsel to answer that 22 question. 23 BY MR. HUDIS: 24 25 Q. I want your -- your independent knowledge; not substance of attorney-client communications. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 354 1 A. Well, my knowledge is based on my 2 attorney-client communications. 3 answer that. 4 Q. All right. So I can't really So you cannot answer my 5 question without revealing substance of 6 attorney-client communications? 7 A. Yeah. 8 Q. Mr. Malamud, could you read in Exhibit 45 9 interrogatory answer number 10? 10 A. Okay. 11 Q. Does interrogatory answer number 10 12 identify all the instances of which a state or 13 federal agency cited the 1999 standards of which 14 Public.Resource is aware? 15 16 MR. BRIDGES: Objection. May -- may lack competence; lacks foundation; vague and ambiguous. 17 And to the extent that the answer would 18 depend upon attorney-client communications, I would 19 object on the grounds of privilege and instruct him 20 not to answer to that extent. 21 THE WITNESS: I would have to divulge my 22 communications with counsel to answer that 23 question. 24 BY MR. HUDIS: 25 Q. So you can't answer my question without Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 355 1 revealing the substance of attorney-client 2 communications? 3 A. That's correct. 4 Q. The citations in interrogatory number 10, 5 are these examples of incorporation by reference of 6 the 1999 standards? 7 MR. BRIDGES: I'm sorry? I think 8 interrogatory number -- interrogatory -- the answer 9 to interrogatory number 10 speaks for itself. 10 THE WITNESS: The interrogatory asks for 11 times it has been cited by a government agency; not 12 times that it was incorporated by reference. 13 BY MR. HUDIS: 14 Q. So what I want to know is, in the answer 15 are these examples or are they not examples of the 16 1999 standards incor -- being incorporated by 17 reference into law -- 18 MR. BRIDGES: 19 MR. HUDIS: 20 21 22 Objection. Let me finish. BY MR. HUDIS: Q. -- in interrogatory answer number 10? MR. BRIDGES: Objection. Competence; may 23 call for speculation; lacks foundation; may require 24 legal conclusion or legal expertise; legal opinion. 25 THE WITNESS: So incorporation by reference Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 356 1 is a technical process that would involve the 2 Federal Register and the Code of Federal 3 Regulations at the federal level. 4 5 Would involve potentially a statute or a regulation at the state level. 6 So a number of these documents cited here 7 are papers, right. 8 incorporation by reference issue. 9 So that wouldn't be an There are a series of Federal Register 10 publications that are listed in the interrogatory. 11 I would have to pull up those individual documents 12 and look at them to see whether or not that was, in 13 fact, an incorporation by reference, in addition to 14 the citation, which is what you asked for. 15 BY MR. HUDIS: 16 Q. Mr. Malamud, does Public.Resource claim 17 that any of the plaintiffs have promoted the 1999 18 standards as being incorporated by reference into 19 law? 20 MR. BRIDGES: Objection to the extent it 21 calls for a legal conclusion or -- or attorney work 22 product or for attorney-client privilege, and also 23 vague and ambiguous. 24 THE WITNESS: 25 So can you repeat that question? Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 357 1 BY MR. HUDIS: 2 Q. Yes. Does -- does Public.Resource claim 3 that any of the plaintiffs have promoted the 1999 4 standards as being incorporated by reference into 5 law? 6 MR. BRIDGES: Same objections to the extent 7 it calls for a legal conclusion or attorney work 8 product or attorney-client privilege. 9 and ambiguous. 10 THE WITNESS: Also vague Yeah, I don't know the 11 official positions of the plaintiffs for promoting 12 things. 13 I just don't know what that means. I know individuals associated with the 14 standards at issue have discussed the fact that the 15 standards have been incorporated by reference. 16 Promoted seems like a loaded term. 17 BY MR. HUDIS: 18 Q. Does Public.Resource claim that any of the 19 plaintiffs have encouraged the 1999 standards as 20 being incorporated by reference into law? 21 MR. BRIDGES: All the same objections. 22 THE WITNESS: I don't know the answer to 23 that. 24 would require an examination of the discovery 25 materials and depositions and that. I believe that's something that -- that Alderson Reporting Company 1-800-FOR-DEPO That's exactly Carl Malamud May 12, 2015 San Francisco, CA Page 358 1 the kind of issue that I believe is going to be 2 discussed and brought out as we continue this 3 litigation. 4 BY MR. HUDIS: 5 Q. I don't know the answer to that. Does Public.Resource claim that any of the 6 plaintiffs have consented to, accepted or 7 acquiesced in the 1999 standards as being 8 incorporated by reference into law? 9 MR. BRIDGES: Objection. Calls for legal 10 conclusions; calls for attorney work product; lacks 11 foundation; competence; vague and ambiguous. 12 13 THE WITNESS: either way to that. 14 15 16 I don't know the answer (PLAINTIFFS' EXHIBIT 46 WAS MARKED.) BY MR. HUDIS: Q. Mr. Malamud, I have marked as Exhibit 46 17 Public.Resource's answer and counterclaim to the 18 plaintiffs' complaint in this action. 19 to turn to page 25. I'd like you 20 A. Okay. 21 Q. And I would like you to look at the top of 22 page 25, and numbered paragraph 2. 23 that? 24 25 A. Do you see The one that reads "Plaintiffs have no copyrights in works that government entities have Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 359 1 2 incorporated by reference into law"? Q. 3 Yes. 4 And what is the factual basis for that statement? 5 MR. BRIDGES: Objection. Calls for a legal 6 conclusion; calls for attorney work product; 7 competence and may call for attorney-client 8 communications. 9 To that extent I would object on the 10 grounds of privilege and instruct the witness not 11 to answer. 12 otherwise for that instruction, then he may 13 proceed. 14 If he feels that he can answer THE WITNESS: So you would like my personal 15 opinion as a layman as to why standards 16 incorporated by reference in the law have no 17 copyright; is that correct? 18 BY MR. HUDIS: 19 20 Q. Well, specifically directed to plaintiffs' work here, the 1999 standards. 21 MR. BRIDGES: 22 partial instruction. 23 THE WITNESS: All the same objections and I can't speak to the specific 24 standard at issue. 25 that standards incorporated by reference under the I can tell you why I believe Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 360 1 Code of Federal Regulations have no copyright. 2 BY MR. HUDIS: 3 4 Q. making that statement? 5 6 What -- what is Public.Resource's basis for MR. BRIDGES: I'm sorry? BY MR. HUDIS: 7 Q. 8 statement? 9 Public.Resource's basis for making that MR. BRIDGES: What statement? The basis 10 for making the -- for asserting the second 11 affirmative defense? 12 MR. HUDIS: 13 MR. BRIDGES: Yes, sir. Okay. I think that's asked 14 and answered, and all the same objections and 15 partial instruction from earlier. 16 THE WITNESS: 17 specific standards at issue. 18 general terms as to why I believe the standards 19 incorporated by reference under the CFR have no 20 copyright. 21 BY MR. HUDIS: 22 23 Q. So I can't speak to the I can speak in And why is that? MR. BRIDGES: Same objections and partial 24 instruction. 25 extent it doesn't depend upon any attorney-client The instruction he may answer to the Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 361 1 privileged communication. 2 THE WITNESS: So as a layman; not a lawyer, 3 I have read widely on this subject, and looked at a 4 number of supreme court decisions on the question 5 of copyright into the law. 6 I have examined the compendium of Copyright 7 Office practices issued by the U.S. copyright 8 Office. 9 I participated in the Administrative 10 Conference of the U.S. deliberations on this issue. 11 I have read fairly widely in the history of 12 promulgation of the law, both in the United States 13 and in the common-law system more generally, and I 14 have read the legislative history, and 15 congressional hearings that led to the creation of 16 the Federal Register and the official journals, as 17 well as the incorporation-by-reference mechanism, 18 which was in the 1960s, and based on this reading, 19 it is my feeling that the law has no copyright in 20 the United States. 21 explicitly incorporated by reference into law is 22 the law. 23 copyright. 24 BY MR. HUDIS: 25 Q. A standard deliberately and And therefore the standards have no If you could turn back to Exhibit 46, page Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 362 1 25, numbered paragraph 3. 2 ownership of the alleged copyrights bars 3 plaintiffs' claim." 4 5 It says, "Lack of What is Public.Resource's factual basis for that statement? 6 MR. BRIDGES: Objection. Attorney work 7 product; attorney-client privilege and instruct -- 8 instruct the witness not to answer. 9 THE WITNESS: 10 that question. 11 I won't be able to answer BY MR. HUDIS: 12 Q. Mr. Malamud, on page 25 of Exhibit 46, the 13 fourth paragraph says, "The doctrine of copyright 14 fair use bars plaintiffs' claim." 15 factual basis for this statement? 16 MR. BRIDGES: What is the I'll object on the grounds of 17 attorney work product and attorney-client 18 privilege. 19 And to the extent this would depend upon 20 attorney-client communications, I would object on 21 the grounds of privilege and would instruct the 22 witness not to answer. 23 24 25 Also calls for a legal conclusion and object on the grounds of competence. If the witness can answer beyond the Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 363 1 instruction I've given, he is free to. 2 THE WITNESS: 3 This is beyond my competence. 4 I'm not a lawyer. BY MR. HUDIS: 5 Q. Mr. Malamud, on page 25 of Exhibit 46, the 6 paragraph says, "The doctrine of unclean hands bars 7 plaintiffs' claim -- claims." 8 9 What is the factual basis for that statement? 10 11 MR. BRIDGES: All the same objections as to the previous line of questions. 12 THE WITNESS: I don't even know what the 13 doctrine of unclean hands is. 14 answer that question. 15 BY MR. HUDIS: 16 Q. I'm not qualified to On page 25 of Exhibit 46, the sixth 17 paragraph says, "The doctrine of copyright misuse 18 bars plaintiffs' claims." 19 20 21 22 23 What is the factual basis for that statement? MR. BRIDGES: All the same objections and partial instruction as to the previous questions. THE WITNESS: I'm not familiar with the 24 doctrine of copyright misuse. 25 answer that question. I'm not qualified to Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 364 1 2 BY MR. HUDIS: Q. Mr. Malamud, on page 25 of Exhibit 46, the 3 seventh paragraph says, "Waiver and estoppel bars 4 plaintiffs's claims." 5 for that statement? 6 MR. BRIDGES: What is the factual basis All the same objections and 7 partial instruction apply here as to the previous 8 questions. 9 THE WITNESS: I'm not familiar with how 10 waiver and estoppel work. 11 answer that question. 12 BY MR. HUDIS: 13 Q. I'm not qualified to Mr. Malamud, on page 25 of Exhibit 46 the 14 eighth paragraph reads, "Lack of irreparable injury 15 bars plaintiffs' demand for injunction." 16 the factual basis for that statement? 17 MR. BRIDGES: What is All the same objections and 18 partial instruction apply here as to the previous 19 questions. 20 THE WITNESS: I don't know what lack of 21 irreparable injury bars means in a legal context. 22 I'm not qualified to answer that. 23 BY MR. HUDIS: 24 25 Q. On page 25 of Exhibit 46, the ninth paragraph reads, "Injunction would greatly harm the Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 365 1 public interest, and thus, the public interest bars 2 plaintiffs' demand for an injunction." 3 4 What's the factual basis for that statement? 5 MR. BRIDGES: All the same objections and 6 partial instruction apply here as to the previous 7 questions. 8 If he -- if he can answer beyond that 9 partial instruction, he may. 10 THE WITNESS: I'm not sure I understand the 11 implications of an injunction and what specifically 12 that would mean in this context. 13 legal question. 14 means before I could answer that. 15 BY MR. HUDIS: Again, that's a I would need to know what that 16 Q. Mr. Malamud, who is Dr. David Michaels? 17 A. Dr. David Michaels is the assistant 18 Secretary of Labor and the administrator of the 19 Occupational Health and Safety Administration. 20 Q. Who is Mr. Shems, S-h-e-m-s, Peterson? 21 A. Mr. Peterson is the retired chief building 22 inspector for Sonoma County, California. 23 Q. Who is Mr. Raymond Mosley? 24 A. Mr. Mosley is the former executive director 25 of the Office of the Federal Register at the Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 366 1 National Archives and Records Administration. 2 Q. Who is Benjamin Goldstein? 3 A. Mr. Goldstein is a former official at the 4 5 Department Of Energy. Q. Have any of these gentlemen, Dr. Michaels, 6 Mr. Peterson, Mr. Mosley or Mr. Goldstein, provided 7 any statements to Public.Resource discussing 8 incorporation by reference in this case? 9 MR. BRIDGES: 10 ambiguous; lacks foundation. 11 THE WITNESS: Objection. Vague and I don't know. 12 our legal team handle that issue. 13 I'm letting know. 14 15 16 I really don't (PLAINTIFFS' EXHIBIT 47 WAS MARKED.) BY MR. HUDIS: Q. Mr. Malamud, I show you what's been marked 17 as Exhibit 47, bearing a document production 18 numbers AERA_APA_NCME 31807 through 31809. 19 Please take a moment to review the 20 21 document. A. 22 23 Okay. MR. BRIDGES: I need to hold on for a second. 24 MR. HUDIS: 25 MR. BRIDGES: Sure. I need to go off the record Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 367 1 briefly to consult with my client about this 2 document. 3 4 THE VIDEOGRAPHER: The time is 7:32, and we are off the record. 5 (Discussion off the record.) 6 THE VIDEOGRAPHER: 7 are back on the record. 8 The time is 7:37, and we BY MR. HUDIS: 9 Q. Mr. Malamud, I'll show you what's been 10 marked as Exhibit 47. 11 document? Do you recognize this 12 A. Yes, I do. 13 Q. What is it? 14 A. It is a notice from the American Petroleum 15 Institute that was sent from the Internet Archive 16 and forwarded along to me. 17 Q. So do you recall receiving API's e-mail 18 correspondence to Internet Archive being forwarded 19 to you at the end of 2012? 20 21 MR. BRIDGES: Objection. You're referring to this document? 22 MR. HUDIS: 23 THE WITNESS: Are you objecting or -- 24 MR. BRIDGES: No. 25 THE WITNESS: Oh, yes. Yes. I do remember. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 368 1 2 3 BY MR. HUDIS: Q. Okay. And Mr. Butler, Chris Butler, is an employee of Internet Archive? 4 MR. BRIDGES: Objection. 5 THE WITNESS: Yes. 6 7 8 BY MR. HUDIS: Q. Do you know why Mr. Butler forwarded API's cease-and-desist copyright notice to you? 9 10 Competence. MR. BRIDGES: Objection. Competence; calls for speculation. 11 THE WITNESS: I am the creator of that 12 particular collection, and any take-down notices go 13 to my attention. 14 BY MR. HUDIS: 15 Q. All right. That was my next question. Did 16 you post API's technical standards to a collection 17 on the Internet Archive? 18 MR. BRIDGES: 19 vague and ambiguous. 20 THE WITNESS: 21 22 23 Objection. Lacks foundation; I did. BY MR. HUDIS: Q. When did you post API's technical standards to a collection on Internet Archive? 24 MR. BRIDGES: 25 vague and ambiguous. Objection. Lacks foundation; Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 369 1 2 3 THE WITNESS: BY MR. HUDIS: Q. 4 5 Before November 2nd, 2012. So around that time? MR. BRIDGES: Objection. Misstates testimony. 6 THE WITNESS: I don't know. 7 MR. BRIDGES: Vague and ambiguous; lacks 8 foundation. 9 THE WITNESS: 10 them. 11 I don't know when I posted BY MR. HUDIS: 12 Q. At the time that you posted API's technical 13 standards to a collection on the Internet Archive, 14 did you also post API's technical standards to a 15 Public.Resource website? 16 MR. BRIDGES: 17 vague and ambiguous. 18 THE WITNESS: 19 20 Objection. Lacks foundation; I did. BY MR. HUDIS: Q. What did you do, if anything, in response 21 to receiving API's e-mail correspondence to 22 Internet Archive after it was forwarded to you by 23 Mr. Butler? 24 25 MR. BRIDGES: Objection. Vague and ambiguous; argumentative; lacks foundation. Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 370 1 THE WITNESS: I sent a response to the 2 author of that letter, Mr. Brett Heavner. 3 BY MR. HUDIS: 4 Q. Did you forward Mr. Butler's e-mail and the 5 API e-mail to anyone affiliated with 6 Public.Resource? 7 8 MR. BRIDGES: Objection. Vague and ambiguous; may call for speculation. 9 THE WITNESS: 10 I don't remember. 11 I would have to speculate. BY MR. HUDIS: 12 Q. Well, who are all members of the 13 Public.Resource legal staff? 14 MR. BRIDGES: Objection. 15 THE WITNESS: Well, that's an interesting Lacks foundation. 16 question because we don't really have a legal 17 staff. 18 was clearly my attempt at some form of humor. 19 20 MR. BRIDGES: 23 So this Jonathan, they were an Army you never want to see. 21 22 I have one part-time of counsel. MR. HUDIS: Or never could. BY MR. HUDIS: Q. After receiving Mr. Heavner's e-mail, did 24 you remove API's technical standards from public 25 view, either from Public.Resource's website or Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 371 1 Internet Archive's website? 2 3 MR. BRIDGES: 6 7 THE WITNESS: Q. Did you respond to Mr. Heavner's e-mail of November 2nd, 2012? MR. BRIDGES: 14 Objection. Vague and ambiguous; also asked and answered. 12 13 Did you respond to Mr. Heavner -- strike that. 10 11 We did not. BY MR. HUDIS: 8 9 Lacks foundation; vague and ambiguous; argumentative. 4 5 Objection. THE WITNESS: I did. BY MR. HUDIS: Q. Mr. Malamud, in response to Mr. Heavner's 15 e-mail of November 2, 2012 as shown in Exhibit 47, 16 did you send him a letter similar to the one you 17 sent to John Neikirk reflected in Exhibit 40? 18 MR. BRIDGES: Objection. Totally 19 argumentative; lacks foundation; vague and 20 ambiguous. 21 THE WITNESS: I sent him a letter 22 explaining that the standards were incorporated by 23 reference into federal law, and respectfully 24 declined to remove the standards. 25 BY MR. HUDIS: Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 372 1 Q. Did anyone from API follow up with you 2 after receiving that letter? 3 MR. BRIDGES: 4 vague and ambiguous. 5 THE WITNESS: 6 Objection. Lacks foundation; No, they dropped the matter. We didn't hear from them again. 7 MR. HUDIS: Mr. Malamud, that's all the 8 questions I have for you at this point, subject to 9 our outstanding discovery motion pending with the 10 court. Thank you for your time. 11 THE WITNESS: Great. 12 MR. BRIDGES: I'll just say that you had an Thank you, sir. 13 opportunity to postpone this deposition until after 14 the motion to compel. 15 the motion to compel pending, and to take I think 16 over eight-and-a-half hours of deposition was -- 17 was a choice that was the plaintiffs' own decision. 18 And so if there are no more questions, the 19 depositions of Public.Resource.Org and Mr. Malamud 20 have, in fact, concluded. 21 MR. HUDIS: 22 MR. BRIDGES: The choice to proceed with We would disagree, Counsel. Well, then ask whatever 23 questions you want for the next 25 minutes and then 24 it's over. 25 MR. HUDIS: Counsel, we don't have to Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 373 1 argue. 2 ask Mr. Malamud, but we cannot until the court 3 rules on our pending motion to compel. 4 There are questions that we would like to MR. BRIDGES: We don't -- You have chosen to proceed 5 now without waiving a -- a ruling by the court. 6 If at some time you wish to seek what I 7 suppose would be something like 20 more minutes of 8 Mr. Malamud's deposition, the costs attendant to 9 that for the defendant -- well, we would oppose. 10 And in any event if -- if you are unwilling to 11 proceed, we would insist on being paid the 12 extraordinary costs of the second session. 13 14 MR. HUDIS: We would respectfully disagree with that position. 15 THE VIDEOGRAPHER: This marks the end of 16 Disc 5, Volume 1 and ends today's deposition of 17 Carl Malamud. 18 19 20 21 22 The time is 7:47, and we are off the record. (The deposition of CARL MALAMUD was adjourned at 7:47 p.m. this date.) --oOo-- 23 24 25 Alderson Reporting Company 1-800-FOR-DEPO Carl Malamud May 12, 2015 San Francisco, CA Page 374 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 2015, 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 REPORTER' S CERTIFICATE 1 The undersigned 2 3 licensed A ¡art-.i ue! urr State in the Certified Shorthand of California Reporter does hereby f.,. y. to administer I am authorized 5 pursuant t-o Code of Civil 6 af f irmations 1 Section 2093 (b,) , and prior o U witness was duly to being counsel 11 employee of such attorney I2 financially 15 foregoing 76 true recorded stenographically deposit-ion, record and the foregoing given the transcript 19 requested, 20 provided 2I action. in the is transcript r:evjew of comp"l-etion of the deposition, If requested. appended hereto. a') reporter In witness 22 LJ any changes made by the deponent to the this .l 1t-\\tr day of ) during \t\r"^-.--ú------ the period I have subscribed whereof, ( and al lowed are my name , 2015. 24 25 DIANE S . a by the witness. tXl was t I was not 1B or who the testimony of the testimony Before I1 officer or nor am I in the outcome of this interested L4 me nor am I a relative or coLlnsel, I am the deposition 13 the examined, or employee or attorney of any of the parties, 10 or Procedure, an oath by administered f am not a relative 9 oaths MART IN, CSR No . 6464

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