AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC. et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 70

LARGE ADDITIONAL ATTACHMENT(S) Index of Consolidated Exhibits In Support of Public.Resource.Org's Motion for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment and Permanent Injunction by PUBLIC.RESOURCE.ORG, INC. #69 MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment and Permanent Injunction filed by PUBLIC.RESOURCE.ORG, INC.. (Attachments: #1 Exhibit 1, #2 Exhibit 2 [Sealed], #3 Exhibit 3 [Sealed], #4 Exhibit 4 [Sealed], #5 Exhibit 5 [Sealed], #6 Exhibit 6 [Sealed], #7 Exhibit 7, #8 Exhibit 8 [Sealed], #9 Exhibit 9, #10 Exhibit 10, #11 Exhibit 11 [Sealed], #12 Exhibit 12 [Sealed], #13 Exhibit 13 [Sealed], #14 Exhibit 14 [Sealed], #15 Exhibit 15 [Sealed], #16 Exhibit 17 [Sealed], #17 Exhibit 18 [Sealed], #18 Exhibit 19 [Sealed], #19 Exhibit 20 [Sealed], #20 Exhibit 21 [Sealed], #21 Exhibit 22 [Sealed], #22 Exhibit 23 [Sealed], #23 Exhibit 24 [Sealed], #24 Exhibit 25 [Sealed], #25 Exhibit 26 [Sealed], #26 Exhibit 27 [Sealed], #27 Exhibit 28 [Sealed], #28 Exhibit 29 [Sealed], #29 Exhibit 30 [Sealed], #30 Exhibit 31, #31 Exhibit 32 [Sealed], #32 Exhibit 33 [Sealed], #33 Exhibit 34 [Sealed], #34 Exhibit 35, #35 Exhibit 36, #36 Exhibit 37, #37 Exhibit 38 [Sealed], #38 Exhibit 39, #39 Exhibit 40, #40 Exhibit 41 [Sealed], #41 Exhibit 42 [Sealed], #42 Exhibit 43 [Sealed], #43 Exhibit 44, #44 Exhibit 45, #45 Exhibit 46, #46 Exhibit 47, #47 Exhibit 48, #48 Exhibit 49, #49 Exhibit 50 [Sealed], #50 Exhibit 51, #51 Exhibit 52, #52 Exhibit 53, #53 Exhibit 54, #54 Exhibit 55, #55 Exhibit 56, #56 Exhibit 57, #57 Exhibit 58, #58 Exhibit 59, #59 Exhibit 60, #60 Exhibit 61, #61 Exhibit 62, #62 Exhibit 63, #63 Exhibit 64 [Sealed], #64 Exhibit 65, #65 Exhibit 66, #66 Exhibit 67, #67 Exhibit 68, #68 Exhibit 69, #69 Exhibit 70, #70 Exhibit 71, #71 Exhibit 72, #72 Exhibit 73, #73 Exhibit 74)(Bridges, Andrew)

EXHIBIT 61

Christopher Butler

December 2, 2014
San Francisco, CA
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UNITED STATES DISTRICT COURT

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for the

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DISTRICT OF COLUMBIA
____________________________

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AMERICAN EDUCATIONAL

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RESEARCH ASSOC., INC.,

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et al.

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Plaintiffs

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Civil Action No.:

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v.

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1:14-cv-00857-TSC

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PUBLIC.RESOURCE.ORG, INC.,
Defendant.

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____________________________)
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San Francisco, California

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Tuesday, December 2, 2014

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Videotaped deposition of CHRISTOPHER BUTLER,

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a witness herein, called for examination by counsel

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for Plaintiffs in the above-entitled matter, the

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witness having been by me first duly sworn, taken

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at the offices of Harvey Siskind, LLP, Four

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Embarcadero Center, 39th Floor, San Francisco,

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

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2014, and the proceedings being taken down by

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Stenotype by CINDY TUGAW, RPR, CSR and transcribed

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under her direction.

Alderson Reporting Company
1-800-FOR-DEPO

Christopher Butler

December 2, 2014
San Francisco, CA
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meetings at Internet Archive was those other four
or five times?
A. No.
Q. What else do you know about Mr. Malamud?
MS. AHMAD: Objection, outside the scope
of the deposition topics.
MR. HUDIS:
Q. You may answer.
A. I know he's involved with Public Resource.
Q. That was my next question.
What, if anything, do you know about
Mr. Malamud's relationship to Public Resource?
A. As I understand it, he -- he's very
central at Public Resource. I don't know his exact
title and responsibilities at the organization.
Q. Is that the extent of your knowledge of
the relationship between Mr. Malamud and Public
Resource?
A. Yes.
Q. Is Public Resource allowed to post content
to Internet Archive's website?
A. Yes.
Q. Is Carl Malamud allowed to post content
into Internet Archive's website?
A. Yes.

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fall under that description. I'm not aware of any
other agreements.
Q. Do you know whether the terms of use were
agreed to by Public Resource or Carl Malamud or
both?
MS. LU: Objection, lack of personal
knowledge, assumes facts not in evidence.
MR. HUDIS:
Q. You may answer if you know.
A. I don't know.
Q. Other than the terms of use of Exhibit 5,
you said there was no formal agreement between
Public Resource or Carl Malamud and Internet
Archive for posting rights.
Was there any informal agreement?
MS. LU: Objection, misstates prior
testimony.
MR. HUDIS:
Q. You may answer.
A. Can you define "posting rights"?
Q. Permission to upload content to Internet
Archive's website.
A. I'm not aware of any.
MR. HUDIS: Off the record.
VIDEO OPERATOR: The time is 10:33 a.m.

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MS. LU: Objection, vague and ambiguous.
MR. HUDIS:
Q. When was Public Resource given access to
publish content to Internet Archive's website?
MS. LU: Vague and ambiguous.
THE WITNESS: I don't know.
MR. HUDIS:
Q. When was Carl Malamud given access to post
content to Internet Archive's website?
MS. LU: Lack of personal knowledge, vague
and ambiguous.
MR. HUDIS:
Q. You may answer.
A. I don't know.
Q. Is there a formal agreement between
Internet Archive and Public Resource that
memorializes, if there is one, posting rights to
the Internet Archive website?
MS. LU: Objection, lack of personal
knowledge, assumes facts not in evidence.
MR. HUDIS:
Q. You may answer.
A. If a -- if a user account was set up
through the -- through the site and our terms of
use were agreed to, then our terms of use would

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We are off the record.
(Discussion off the record.)
(Plaintiffs' Exhibit 6 marked for
identification.)
VIDEO OPERATOR: The time is 10:41 a.m.
We are on the record.
Mr. HUDIS: I've now marked as Exhibit 6 a
web page with different views which I will discuss
with the witness in a moment. It's a total of
eight pages.
Q. Mr. Butler, what we did -- it's on the
date stamped up in the upper left-hand corner,
March 14, 2014.
The way that we understand the material
which we call the 1999 standards was uploaded to
Internet Archive's website. The material in this
frame here, showing the witness, has the ability so
that electronically you read it like a book.
So we took a first shot of the web page
with the first page of the '99 standards, and then
the second page which is the front cover of the
'99 standards, and then we took another shot,
screenshot, of the inside cover and copyright page,
and then finally the table of contents.
Do you see that?

15 (Pages 54 to 57)
Alderson Reporting Company
1-800-FOR-DEPO

Christopher Butler

December 2, 2014
San Francisco, CA
Page 58

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A. Yes.
Q. So these are, in fact, different shots of
the same page with different turns, electronically,
of the book.
Do you understand that?
A. I understand.
Q. Okay. So -MS. AHMAD: Yes. So you should answer
questions about this exhibit assuming that that
description is accurate.
THE WITNESS: I understand.
MR. HUDIS:
Q. Mr. Butler, do you recognize Exhibit 6 as
a web page from Internet Archive's website that
existed at one time?
MS. LU: Objection, lack of personal
knowledge.
THE WITNESS: This has the layout of an
Internet Archive details page. I recognize it as
the layout and design of an Internet Archive
details page.
MR. HUDIS:
Q. Do you know what material is posted on
this web page of Exhibit 6?
MS. LU: Objection, lack of personal

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MS. AHMAD: No, I can't.
MR. HUDIS:
Q. On the second page of Exhibit 6, it says,
"Identifier-access."
Do you see that?
A. Yes.
Q. Based upon your knowledge of an Internet
Archive details page, who created this identifier
access string?
MS. LU: Objection, vague and ambiguous,
lack of personal knowledge.
MR. HUDIS:
Q. You may answer.
A. I don't know. I don't know whether a
submitter would have created that or whether the
Internet Archive's automated processes created it.
Q. To the best of your knowledge it's one or
the other?
MS. LU: Objection, lack of personal
knowledge.
THE WITNESS: To the best of my knowledge,
it would either have been performed by Internet
Archive's automated processes or an account holder
with requisite permission to edit this item's
metadata.

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knowledge.
THE WITNESS: I see a title for the
material.
MR. HUDIS:
Q. What title is that?
A. The title is "AERA: Standard for
Educational and Psychological Testing," and then
there's a date in parentheses following that,
"1999."
Q. According to this exhibit, the bottom of
the second page, who posted the 1999 standards to
this web page?
MS. LU: Objection, lack of personal
knowledge.
THE WITNESS: On the -- on the second
page, I see a metadata tag entitled, "Credits" that
reads "Uploaded by Public.Resource.Org.
As I understand the function of our
website, the submitter would have submitted that
tag and the text displayed beside it, reading
"Uploaded by Public.Resource.Org."
MR. HUDIS: Counsel, can you stipulate
that Exhibit 6 is a business record of Internet
Archive that existed at one time, at least on
March 14th, 2014?

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MR. HUDIS:
Q. To the best of your knowledge, if you
could look on Page 1, beneath the -- beneath the
frame containing the 1999 standards, who wrote the
text under where it says, "Description"?
MS. LU: Objection, lack of personal
knowledge.
THE WITNESS: The service requires a
description to be provided by the submitter at the
time of upload. That information may subsequently
be edited by an account that has permissions to do
so.
MR. HUDIS:
Q. And in this context, that account would
have been by Public.Resource.Org?
MS. LU: Objection, lack of personal
knowledge and argumentative.
THE WITNESS: Sorry, could you repeat the
question, please?
MR. HUDIS:
Q. Yes, yes.
Is it correct to say that the text on this
web page of Exhibit 6, beneath the frame containing
the 1999 standards, was provided by the submitter?
MS. LU: Objection, lack of personal

16 (Pages 58 to 61)
Alderson Reporting Company
1-800-FOR-DEPO

Christopher Butler

December 2, 2014
San Francisco, CA
Page 126

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MR. HUDIS:
Q. So your company defines download count.
Does the download count distinguish between an
Internet user's view of a page versus capturing and
copying content to go to another computer?
MS. LU: Objection, vague and ambiguous.
THE WITNESS: The download count does not
distinguish between, for example, a visit to a web
page without, for instance, saving that file
through the -- a browser's downloader or selecting
files' save-as from the browser.
MR. HUDIS:
Q. Does Internet Archive's download count
distinguish between visits from human beings over
the Internet versus Internet crawling robots, or
bots, or uploaders, or internal visits from
Internet Archive processes or staff?
MS. LU: Objection, vague and ambiguous.
THE WITNESS: No. The download count does
not distinguish between all of those different
types of access.
MR. HUDIS:
Q. For the purposes of my next question, I
need your definition of what an IP address is.
A. Okay.

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Q. Does Internet Archive maintain any records
or other information that would enable it to be
more specific about what is included or excluded
from a download count?
MS. LU: Same objection.
THE WITNESS: I'm not aware of any further
information that we would be able to supply.
MR. HUDIS:
Q. How does Internet Archive obtain the
download count of a specific web page after the
uploaded content is removed?
MS. LU: Objection, lack of personal
knowledge, assumes facts not in evidence. Counsel,
if you want to ask him about how someone retrieved
this Exhibit 11, then I would not object to that.
MR. HUDIS:
Q. All right. I'm going to ask you
specifically about Exhibit 11. I'd like to know
generally how the information was obtained.
We've established that a make_dark command
was run for the content of the 1999 standards in
June of 2014, correct?
MS. LU: Objection, misstates prior
testimony, lack of personal knowledge.
MR. HUDIS:

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Q. What is an IP address?
MS. LU: Objection, to the extent it calls
for expert testimony.
THE WITNESS: What I know about an
IP address is that it is a unique number associated
with a computer that is connected to a network.
MR. HUDIS:
Q. Does Internet Archive's download count
include or exclude multiple visits from the same
IP address during a given day?
MS. LU: Objection, vague and ambiguous.
THE WITNESS: During a day, as defined by
UTC time, Internet Archive's systems are designed
to log multiple visits from the same IP -- count,
excuse me, count multiple visits from the same
IP address as only one download.
MR. HUDIS:
Q. Does Internet Archive maintain any records
or other information that would enable it to be
more specific about what is included or excluded
from a download count?
MS. LU: Objection, vague and ambiguous.
THE WITNESS: Can you read the question
again, please?
MR. HUDIS: Yes.

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Q. When was this make_dark command of
Exhibit 9 run?
A. The date listed on the task log for this
task which has a command listed of make_dark.php is
June 11th, 2014.
Q. I've now marked as Exhibit 11 a one-page
document that's in front of you.
What is the date of this document?
A. The date of Exhibit 11 is November 25th,
2014.
Q. What is this document?
A. This document is a screen capture of the
Mac Terminal application. The Terminal was used by
myself to submit a query to archive.org's systems
to obtain archive.org's records for the download
count for the item with identifier gov.law.aera
.standards.1999.
Q. The make_dark command of Exhibit 9
associated with that identifier was run in June of
2014, correct?
A. The task log lists that date -- the task
log associated with the make_dark command lists
that date.
Q. And the same identifier you got at a
download -- a set of download information on

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Alderson Reporting Company
1-800-FOR-DEPO

Christopher Butler

December 2, 2014
San Francisco, CA
Page 142

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CERTIFICATE OF DEPONENT
I hereby certify that I have read and examined the
foregoing transcript, and the same is a true and
accurate record of the testimony given by me.
Any additions or corrections that I feel are
necessary, I will attach on a separate sheet of
paper to the original transcript.
_________________________
Signature of Deponent
I hereby certify that the individual representing
himself/herself to be the above-named individual,
appeared before me this _____ day of ____________,
2014, and executed the above certificate in my
presence.
________________________
NOTARY PUBLIC IN AND FOR
________________________
County Name
MY COMMISSION EXPIRES:

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STATE OF CALIFORNIA )
COUNTY OF SAN FRANCISCO )
I, CINDY TUGAW, a Certified Shorthand
Reporter of the State of California, duly
authorized to administer oaths pursuant to Section
8211 of the California Code of Civil Procedure, do
hereby certify that
CHRISTOPHER BUTLER,
the witness in the foregoing deposition, was by me
duly sworn to testify the truth, the whole truth
and nothing but the truth in the within-entitled
cause; that said testimony of said witness was
reported by me, a disinterested person, and was
thereafter transcribed under my direction into
typewriting and is a true and correct transcription
of said proceedings.
I further certify that I am not of counsel
or attorney for either or any of the parties in the
foregoing deposition and caption named, nor in any
way interested in the outcome of the cause named in
said caption.
Dated the 11th day of December, 2014.
CINDY TUGAW
CSR NO. 4805

37 (Pages 142 to 143)
Alderson Reporting Company
1-800-FOR-DEPO