AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC. et al v. PUBLIC.RESOURCE.ORG, INC.
Filing
60
MOTION for Summary Judgment Filed by AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC., AMERICAN PSYCHOLOGICAL ASSOCIATION, INC., NATIONAL COUNCIL ON MEASUREMENT IN EDUCATION, INC. (Attachments: #1 Statement of Facts Points of Authority, #2 Statement of Facts Statement of Undisputed Facts, #3 Declaration Declaration of Jonathan Hudis, #4 Exhibit Ex. A, #5 Exhibit Ex. B, #6 Exhibit Ex. C, #7 Exhibit Ex. D, #8 Exhibit Ex. E, #9 Exhibit Ex. F, #10 Exhibit Ex. G, #11 Exhibit Ex. H, #12 Exhibit Ex. I, #13 Exhibit Ex. J, #14 Exhibit Ex. K, #15 Exhibit Ex. L, #16 Exhibit Ex. M, #17 Exhibit Ex. N, #18 Exhibit Ex. O, #19 Exhibit Ex. P, #20 Exhibit Ex. Q, #21 Exhibit Ex. R, #22 Exhibit Ex. S, #23 Exhibit Ex. T, #24 Exhibit Ex. U, #25 Exhibit Ex. V-1, #26 Exhibit Ex. V-2, #27 Exhibit Ex. W, #28 Exhibit Ex. X, #29 Exhibit Ex. Y, #30 Exhibit Ex. Z, #31 Exhibit Ex. AA, #32 Exhibit Ex. BB, #33 Exhibit Ex. CC, #34 Exhibit Ex. DD, #35 Exhibit Ex. EE, #36 Exhibit Ex. FF-1, #37 Exhibit Ex. FF-2, #38 Exhibit Ex. FF-3, #39 Exhibit Ex. FF-4, #40 Exhibit Ex. FF-5, #41 Exhibit Ex. FF-6, #42 Exhibit Ex. GG, #43 Exhibit Ex. HH, #44 Exhibit Ex. II, #45 Exhibit Ex. JJ, #46 Exhibit Ex. KK, #47 Exhibit Ex. LL, #48 Exhibit Ex. MM, #49 Declaration Declaration of Marianne Ernesto, #50 Exhibit Ex. NN, #51 Exhibit Ex. OO, #52 Exhibit Ex. PP, #53 Exhibit Ex. QQ, #54 Exhibit Ex. RR, #55 Exhibit Ex. SS, #56 Exhibit Ex. TT, #57 Exhibit Ex. UU, #58 Exhibit Ex. VV, #59 Exhibit Ex. WW, #60 Exhibit Ex. XX, #61 Exhibit Ex. YY, #62 Exhibit Ex. ZZ, #63 Exhibit Ex. AAA, #64 Exhibit Ex. BBB, #65 Exhibit Ex. CCC, #66 Exhibit Ex. DDD, #67 Exhibit Ex. EEE, #68 Exhibit Ex. FFF, #69 Exhibit Ex. GGG, #70 Exhibit Ex. HHH, #71 Exhibit Ex. III, #72 Exhibit Ex. JJJ, #73 Declaration Declaration of Lauress Wise, #74 Exhibit Ex. KKK, #75 Exhibit Ex. LLL, #76 Declaration Declaration of Wayne Camara, #77 Exhibit Ex. MMM, #78 Declaration Declaration of Felice Levine, #79 Exhibit Ex. NNN, #80 Exhibit Ex. OOO (Public Version), #81 Exhibit Ex. PPP, #82 Exhibit Ex. QQQ, #83 Exhibit Ex. RRR, #84 Exhibit Ex. SSS, #85 Exhibit Ex. TTT-1, #86 Exhibit Ex. TTT-2, #87 Exhibit Ex. UUU, #88 Declaration Declaration of Kurt Geisinger, #89 Declaration Declaration of Dianne Schneider, #90 Text of Proposed Order Proposed Order, #91 Certificate of Service Certificate of Service)(Hudis, Jonathan). Added MOTION for Permanent Injunction on 12/22/2015 (td).
EXHIBIT 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?
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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:
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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
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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
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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,
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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
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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
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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
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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."
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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
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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:
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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?
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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?
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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
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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
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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.
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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
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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?
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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:
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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.
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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
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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
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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?
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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
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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.
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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
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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.
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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
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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
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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
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One
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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:
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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
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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.
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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
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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?
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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?
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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
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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
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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?
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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?
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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
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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
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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
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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.
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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?
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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
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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
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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
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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
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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
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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
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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
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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:
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Carl Malamud
May 12, 2015
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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?
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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
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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
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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
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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;
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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.
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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:
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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
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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?
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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.
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May 12, 2015
San Francisco, CA
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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
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May 12, 2015
San Francisco, CA
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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
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Carl Malamud
May 12, 2015
San Francisco, CA
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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
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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.
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Carl Malamud
May 12, 2015
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(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?
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May 12, 2015
San Francisco, CA
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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:
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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
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May 12, 2015
San Francisco, CA
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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?
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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
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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.
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Carl Malamud
May 12, 2015
San Francisco, CA
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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?
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Carl Malamud
May 12, 2015
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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
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Carl Malamud
May 12, 2015
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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?
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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
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May 12, 2015
San Francisco, CA
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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
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Carl Malamud
May 12, 2015
San Francisco, CA
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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,
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May 12, 2015
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"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
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"A
Carl Malamud
May 12, 2015
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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
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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
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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
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Carl Malamud
May 12, 2015
San Francisco, CA
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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
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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
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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?
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Carl Malamud
May 12, 2015
San Francisco, CA
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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
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Carl Malamud
May 12, 2015
San Francisco, CA
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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
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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
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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
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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
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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.
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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
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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:
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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?
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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.
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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
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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
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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?
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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
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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.
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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?
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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.
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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.
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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
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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.
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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?
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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
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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.)
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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.
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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.
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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:
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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.
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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.
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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
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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 --
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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
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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
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Carl Malamud
May 12, 2015
San Francisco, CA
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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
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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.
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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
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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,
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May 12, 2015
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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
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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
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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.
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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
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Mr. Bhatia
Carl Malamud
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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
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May 12, 2015
San Francisco, CA
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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
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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,
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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
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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
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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
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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
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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.
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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,
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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
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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
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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
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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.
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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?
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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
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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
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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 --
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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:
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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,
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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.
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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
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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:
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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
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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."
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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?
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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
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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
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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
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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
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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,
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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
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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:
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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.
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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.
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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
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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.
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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?
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Is that
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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
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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?
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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.
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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.
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Also
Carl Malamud
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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.
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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
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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:
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Carl Malamud
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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
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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
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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
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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?
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May 12, 2015
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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
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Carl Malamud
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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
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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
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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"?
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May 12, 2015
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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
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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
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Carl Malamud
May 12, 2015
San Francisco, CA
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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
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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,
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San Francisco, CA
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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
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Carl Malamud
May 12, 2015
San Francisco, CA
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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.
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So
Carl Malamud
May 12, 2015
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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
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Carl Malamud
May 12, 2015
San Francisco, CA
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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
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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?
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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.
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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
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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?
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May 12, 2015
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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
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May 12, 2015
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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.
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Carl Malamud
May 12, 2015
San Francisco, CA
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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?
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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.
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May 12, 2015
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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
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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.
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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.)
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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.
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I wanted to
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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.
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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:
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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.
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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."
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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
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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.
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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.
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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.
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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
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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,
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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.
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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
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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
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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
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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?
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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?
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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.
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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?
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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?
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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?
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May 12, 2015
San Francisco, CA
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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
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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
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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.
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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
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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
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May 12, 2015
San Francisco, CA
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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
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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
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Carl Malamud
May 12, 2015
San Francisco, CA
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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
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Carl Malamud
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San Francisco, CA
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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
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Carl Malamud
May 12, 2015
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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
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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.
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May 12, 2015
San Francisco, CA
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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
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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.
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May 12, 2015
San Francisco, CA
Page 297
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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.
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Carl Malamud
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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
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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;
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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?
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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
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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,
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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
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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:
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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
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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.
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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:
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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
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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?
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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.
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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.
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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:
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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.
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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
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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?
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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
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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?
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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.
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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
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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
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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.
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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
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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
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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
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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
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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
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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;
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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
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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.
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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
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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
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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
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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.
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Do you see
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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:
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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.
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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:
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May 12, 2015
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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
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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
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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?
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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.
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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
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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
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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.
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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,
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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
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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?
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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
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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
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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.
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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
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May 12, 2015
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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:
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May 12, 2015
San Francisco, CA
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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.
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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.
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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
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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
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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?
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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
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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
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May 12, 2015
San Francisco, CA
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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
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May 12, 2015
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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
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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
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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
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May 12, 2015
San Francisco, CA
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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
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Carl Malamud
May 12, 2015
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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
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Carl Malamud
May 12, 2015
San Francisco, CA
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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.
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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;
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May 12, 2015
San Francisco, CA
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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.
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Carl Malamud
May 12, 2015
San Francisco, CA
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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
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Carl Malamud
May 12, 2015
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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
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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