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 7

Carl Malamud

May 12, 2015
San Francisco, CA
Page 1

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF COLUMBIA

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_________________________________

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AMERICAN EDUCATIONAL RESEARCH

)

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ASSOCIATION, INC., AMERICAN

)

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PSYCHOLOGICAL ASSOCIATION, INC., )

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and NATIONAL COUNCIL ON

)

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MEASUREMENT IN EDUCATION, INC.,

) Civil Action No.

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Plaintiffs,

) 1:14-cv-00857-TSC-DAR

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v.

)

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PUBLIC.RESOURCE.ORG,

)

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Defendant.

)

_________________________________)

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VIDEOTAPED DEPOSITION OF CARL MALAMUD

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DATE:

May 12, 2015

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TIME:

9:33 a.m.

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LOCATION:

Fenwick & West

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555 California Street

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12th Floor

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San Francisco, California

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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 110

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expertise or conclusion.
BY MR. HUDIS:
Q. Should I repeat the question, Mr. Malamud?
A. Yeah.
Q. Does Exhibit 18 indicate to you that
Public.Resource attained its nonprofit status in
September of 2007?
MR. BRIDGES: Same objections.
THE WITNESS: The date of the letter is
September 25th. That's not the date of the
nonprofit status.
BY MR. HUDIS:
Q. What is the date of the nonprofit status?
A. April 13th, 2007.
Q. Fair enough. And I see that date.
A. Yeah.
Q. Thank you very much.
(PLAINTIFFS' EXHIBITS 19-20 WERE MARKED.)
BY MR. HUDIS:
Q. Mr. Malamud, please take a moment to look
at Exhibits 19 and 20.
A. Okay.
Q. Have you looked at the exhibits?
A. Yes, I have.
Q. Could you tell me what Exhibit 19 is?

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look like, but I don't know at specific points in
time.
BY MR. HUDIS:
Q. Now, Exhibit 19, in the center are these
some of the websites that Public.Resource provides
to the public?
A. Yes. And there's one more website that I
forgot to tell you about on there.
Q. Which one?
A. Bulk -MR. BRIDGES: I'm sorry.
THE WITNESS: Pardon me.
MR. BRIDGES: I object on the grounds it
lacks foundation; very confusing to me.
What are you directing his attention to in
this exhibit?
MR. HUDIS: Sure. Counsel, do you see
where it says "Watch FedFlix" in the center of the
page on Exhibit 19?
MR. BRIDGES: Right.
MR. HUDIS: And there are a number of
websites listed below that?
MR. BRIDGES: Okay. I just wanted to be
clear.
MR. HUDIS: Yes.

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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
this web page of Exhibit 19, you have updated the
content since then?
MR. BRIDGES: Objection. Misstates
testimony; vague and ambiguous.
THE WITNESS: When did you print this?
BY MR. HUDIS:
Q. Our best recollection is January of 2015.
A. I don't know. I would have to
double-check.
Q. I amend that because Exhibit 20 was also
printed on the same date. So we probably printed
it in March of 2014.
A. Yeah. That makes sense.
Q. So this -- so Exhibit 19 and 20 appears to
you to be the content of the home page and the
about page of the Public.Resource.Org website in or
about March of 2014?
MR. BRIDGES: Objection. May call for
speculation if he doesn't have definite memory;
vague and ambiguous; compound; lacks foundation.
THE WITNESS: I'd have to speculate. It
has the look and feel of what those pages typically

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MR. BRIDGES: If that's what you're
referring to, fine.
MR. HUDIS: Yes.
BY MR. HUDIS:
Q. So continue, Mr. Malamud.
A. Bulk.resource.org is the website that I
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
approximately 8 million IRS-exempt organization
filings.
Q. And when you say "exempt," do you mean tax
exempt?
A. Exempt organizations is a category that the
IRS has assigned. Many of them are tax exempt, but
it also includes political organizations.
Q. So if I remember my Internal Revenue Code,
those are 501(c)(3) and 501(c)(4) organizations?
MR. BRIDGES: Objection. May call for
legal expertise or conclusion.
THE WITNESS: Also section 527
organizations.
BY MR. HUDIS:
Q. So all three?

29 (Pages 110 to 113)

Alderson Reporting Company
1-800-FOR-DEPO

Carl Malamud

May 12, 2015
San Francisco, CA
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Q. In what way would data files be considered
content for the Internet?
A. So content in my mind, and again, this is a
broad, philosophical topic, implies something that
a human being can look at and take some meaning
from.
So a data file might include a binary
image. Is that content or not? Again, that's -it would be a fascinating essay.
Q. Which brings me to my next question.
What does it mean to view content on an
Internet website?
MR. BECKER: Objection. Vague.
THE WITNESS: So view to me sounds to me
like a human being at a computer using the
Internet. So I think that is an end user looking
at an item that is available from another computer.
BY MR. HUDIS:
Q. What does it mean to access content on an
Internet website?
MR. BECKER: Objection. Vague. Objection.
May also be argumentative. Objection. May call
for a legal conclusion.
THE WITNESS: So access is a more precise
technical term, and that to me implies that a

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THE WITNESS: Well, there's different kinds
of requests.
BY MR. HUDIS:
Q. There are different kinds of HTTP requests?
A. Yes.
Q. All right. Could you tell me what they
are? Are there many?
MR. BECKER: Objection. Compound.
BY MR. HUDIS:
Q. Are there many types of HTTP requests?
A. Okay. Let me preface this by saying I
would want to review the HTTP protocol
specification, but there are several, I can say
that for a fact.
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
request, g-e-t. And that request is how a client
asks for a particular URL from a server.
Q. 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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computer, not necessarily a human being, but a
computer has requested some data from another
computer, and that request was successful and the
data was transferred.
BY MR. HUDIS:
Q. What does it mean to download content from
an Internet website?
MR. BECKER: Objection. Vague. Objection.
May call for a legal conclusion. Objection. May
be argumentative.
THE WITNESS: Again, that's a vague term,
like view. But from the standpoint of an
individual human being at a computer, download
implies taking some content from another location
and having it copied on your personal computer, for
example.
BY MR. HUDIS:
Q. Could you tell us what an HTTP question is,
otherwise known as a hypertext transfer protocol
request?
A. It is one of a series of operations -protocol operations defined in the HTTP protocol
specification.
Q. And what does it do?
MR. BECKER: Objection. Vague.

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A. The head request asks for the metadata
associated with the document, such as the last
modified time or the number of bytes.
Q. Can you name another type of HTTP request?
A. There is a put request, and I would have to
consult for the precise definition of that one.
Q. What generally does a put request do?
MR. BECKER: Objection. Vague.
THE WITNESS: I'd want to -MR. BECKER: Objection. Competence.
THE WITNESS: I'd want to look at the HTTP
protocol specification. It's not something I'm
familiar with.
BY MR. HUDIS:
Q. 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. Hypothetical.
Objection. Vague.
THE WITNESS: A get request is one of the
more common mechanisms for accessing data from an
HTTP server.

38 (Pages 146 to 149)

Alderson Reporting Company
1-800-FOR-DEPO

Carl Malamud

May 12, 2015
San Francisco, CA
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about standards made by quasi-governmental
organizations. A totally different topic.
BY MR. HUDIS:
Q. Could we turn to the next page. Page 3225
of Exhibit 22. It says two-thirds of the way down
the page, "I gave a little speech about the morals
necessity of disseminating standards."
What did you mean by that?
A. This was a -MR. BECKER: Objection. Vague.
THE WITNESS: This was in the context of a
visit to the International Organization For
Standards or organization, known as -International Organization For Standardization,
known as ISO. The acronym is different than the
name, which says something about them.
And this was the organization that was
attempting to have the whole Internet run on the
open systems interconnection protocol suite, and my
little speech to the gentlemen that I visited was
that if they wanted their protocol suite to be
ubiquitous, to be globally adopted, that would only
work if those standards were readily available for
people to read.
BY MR. HUDIS:

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Q. What is an ITU specification?
A. How a modem works, for example.
Q. And please define ISO.
A. ISO is the International Organization for
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,
"Eicher was quite frank. 25 percent of ISO
revenues came from the sale of standards documents.
How did I propose to replace that revenue? Even
more importantly, ISO was controlled by its member
organizations, which also made much money from
standards sales. How did I propose to convince
groups like ANSI that posting standards for free
would help them?"
Do you see that?
A. Yes, I do.
MR. BECKER: Objection. The document
speaks for itself. Objection. Relevance.
BY MR. HUDIS:
Q. In this context -- sorry. I'm sorry if I
spoke over you.

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Q. When you say "readily available," do you
mean -- did you mean readily available for free?
MR. BECKER: Objection. Vague. Objection.
Relevance.
THE WITNESS: The IETF made its protocol
specifications available for me. And my little
moral lecture to the International Organization For
Standardization was that if they wished to win this
race to become the basis for the modern Internet,
that would only happen if their standards were, in
fact, available for free, so anybody could read
them.
BY MR. HUDIS:
Q. The next paragraph says, "We then started
talking about applying Bruno to the ISO world."
First of all, what is Bruno?
A. Bruno was a project that I undertook with
the blessings of the secretary general of the
International Telecommunication Union to convert
and post the ITU specifications to the Internet so
anybody could read them for free.
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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In this context, what is ANSI?
A. ANSI is the American National Standards
Institute.
Q. So you pose a series of questions here on
page 32225, and then on the next page you say, and
this is on page 32226 of Exhibit 22, "I proposed my
high resolution/low resolution compromise. The
plan would post low resolution versions of
documents for free on the network and allow ISO and
ANSI to continue to sell high resolution versions
either on paper or electronically."
So was that your answer to the question
that you posed on the prior page, 32225?
MR. BECKER: Objection. The document
speaks for itself.
THE WITNESS: It was one of my thoughts in
1991 as to a way that ISO could function in a
modern world.
BY MR. HUDIS:
Q. Then in two paragraphs later, you say, "The
crucial assumption was that people with the free
version would then pay for documents." And at the
end of that paragraph it says, "Giving away
standards would lead to increased revenues."
So here is my question about that crucial

41 (Pages 158 to 161)

Alderson Reporting Company
1-800-FOR-DEPO

Carl Malamud

May 12, 2015
San Francisco, CA
Page 170

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acknowledge that the issue of copyright and
standards, after they've been incorporated into
law, is unsettled and that ACUS is not taking a
position on this subject?" What did you mean?
MR. BECKER: Objection. The document
speaks for itself. Objection. Vague.
THE WITNESS: I felt it inappropriate for
ACUS to be taking a strong position on what the
copyright status was of documents incorporated into
law.
BY MR. HUDIS:
Q. Why?
A. Frankly, there was a young staff member who
was doing the research for this recommendation who
felt very strongly that standards incorporated by
reference into law maintained their copyright, even
as a part of the Code of Federal Regulations. And
as I said in this paragraph here, I think it would
be fair to say this is above our pay grade. I felt
that the young staffer was -- was stretching.
Q. So that brings me to my next question.
The next sentence says, "There is obviously
a strong bias towards protecting and honoring
copyright on the one hand, but we also have the
Veeck," V-e-e-c-k, "decision and some ambiguity in

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THE WITNESS: So it's pronounced Veeck, by
the way. It's a Dutch name. P. Veeck. It -- the
preamble was taking at the time a strong position
that standards incorporated into reference by law
had copyright and that the law could have
copyright.
And again, I felt that this young staffer
was simply moving beyond what a body such as the
Administrative Conference of the United States
could say is the established truth. I felt she was
speculating, to use the language we use in
depositions.
BY MR. HUDIS:
Q. And what did you mean by "I think it would
be fair to say this is above our pay grade"?
MR. BECKER: Objection again. The document
speaks for itself. Objection. Asked and answered.
THE WITNESS: So I'm not a lawyer, but I
have looked at a number of documents that indicate
that in the United States the law has no copyright.
And that includes, in many formulations, materials
incorporated by reference into the law. Mr. Bhatia
from ANSI, for example, B-h-a-t-i-a, has stated
many times that standards incorporated by reference
are the law, and it seemed to me that that was a

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the law. I think it would be fair to say this is,"
quote, "above our pay grade," period, unquote.
A couple of questions on that passage.
What did you mean in the third sentence by
"some ambiguity in the law"?
MR. BECKER: Again, same objections. The
document speaks for itself. It's beyond the scope
of the 30(b)(6) designation. And the objection on
relevance grounds. Again, objection that this may
call for a legal conclusion.
THE WITNESS: So I'm not a lawyer, but I
read the Veeck decision, and it seemed to me that
the researcher at ACUS was drawing conclusions from
the Veeck decision that while perhaps appropriate
for a federal judge to be making, were
inappropriate to be laying them down as categorical
statements. I felt she was reading into the Veeck
decision in ways that were perhaps not supported by
the language. And again, I'm not a lawyer.
BY MR. HUDIS:
Q. I understand.
What conclusions was the researcher drawing
from Veeck that concerned you?
MR. BECKER: Objection. Relevance.
Objection. Vague. Objection. Lacks foundation.

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long-standing policy of the United States.
And again, this was something that if one
were to draw a different conclusion that a portion
of the law in fact, did maintain copyright and one
needed a license to access and use that material,
that was certainly not a statement that the
organization such as the Administrative Conference
of the United States should be making.
(PLAINTIFFS' EXHIBIT 24 WAS MARKED.)
BY MR. HUDIS:
Q. Mr. Malamud, I'll now show you what's been
marked as Exhibit 24. Before I ask you questions
about the document, what is On The Media?
A. Oh, that's a National Public Radio program.
Q. Who is Bob Garfield?
A. I assume he's a host or reporter.
Q. Do you recognize Exhibit 24?
A. No, I do not. 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?
A. That sounds about right.
Q. What was the purpose of the interview?
A. I think you'd have to ask On The Media.
Q. What was your purpose for giving the

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Alderson Reporting Company
1-800-FOR-DEPO

Carl Malamud

May 12, 2015
San Francisco, CA
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interview?
MR. BECKER: Objection for relevance.
THE WITNESS: If a well-respected program
such as On The Media by National Public Radio wants
me to talk to them, I will generally make myself
available.
BY MR. HUDIS:
Q. Exhibit 24 appears to be an interview that
you gave in April of 2012 to Mr. Garfield. I'd
like to ask you a couple of questions.
If you would turn in Exhibit 24 to
production page AERA_APA_NCME 32076.
A. Okay. Yes.
Q. Mr. Garfield in the middle of the page
asks, "There is an expense attached to developing
and codifying these standards. If we take the
revenue away from those who do this work, then what
happens?" And you provide two answers. I'll read
them.
"Well, there's two answers to that. One is
that the nonprofits that develop these standards
have a lot of different revenue streams. They do
conferences. They do certification. They develop
standards that aren't law. In fact, the vast
majority of their standards are not. And so maybe

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Counsel. I just mind the ones that would try to
indicate the -- to the witness how he should answer
his questions.
BY MR. HUDIS:
Q. So my question about this document, do you
recall this interview?
A. Yes, I do.
Q. All right. 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. Sure.
So if standards development organizations
lose their copyright by incorporation by reference,
is it your theory that the standards
organization -- development organization should
make their money some other way?
MR. BECKER: Objection. Vague. Objection.
May call for a legal conclusion. Objection.
Hypothetical. Objection. May mischaracterize the
witness.
BY MR. HUDIS:
Q. You may answer.
A. I have testified on this subject before
Congress saying that I believe that when a standard

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they need to adjust their business model,
particularly given the fact that they are a
nonprofit public charity."
You continue. "Answer number two is that
government has shirked its responsibilities. It
said 'Gee, we can just incorporate these privately
developed standards in the law and we won't have to
pay anything.' And the only people that get
screwed up by this are the citizens that need to
read the law."
Do you recall giving those answers to
Mr. Garfield at the interview of April 2012?
MR. BECKER: Objection. Mr. Malamud has
said that he does not recognize this document.
Objection to the extent that it's not clear how
this document was transcribed or its authenticity.
Objection with regards to relevance, particularly
on the grounds that the plaintiffs have said that
the finances and revenue of the plaintiffs, other
than directly related to the sale of the 1999
standards, is not at issue in this case as they so
claim.
Objection on the grounds that the question
assumes facts not in evidence.
MR. HUDIS: I don't mind the objections,

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is incorporated by reference, usually with the
active ascents of -- of the SDO, that organization
is given a gold seal of approval, right. They are
the original creator of what has become a portion
of American law, and that that is a unique
marketing opportunity.
That opportunity can be used to -- to sell
authenticated versions of the standard. To sell
auxiliary products. That there are a number, in
general, of business models that can emerge out of
this favored position.
As to how that specifically applies to a
specific SDO, again, we would want to look at -- I
would want to look at the very specific nature of
that organization. But I still talk in general
about the unique position of having a standard
incorporated by reference into federal law and how
favorable that is.
BY MR. HUDIS:
Q. And is it your view that once incorporated
by reference, the standard loses its copyright
enforcement ability and the standards development
organization that wrote that standard,
"incorporated by reference," would have to obtain
its income some other way than selling the

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standard?
MR. BECKER: Objection. Calls for a legal
conclusion. Objection. Argumentative. Objection.
Lacks foundation and assumes facts not in evidence.
Objection. Vague.
THE WITNESS: So I disagree with that
characterization. I -- I believe that even if the
law is available to citizens, that does not
preclude a standards development organization
continuing to sell that document. Particularly
selling an authenticated version, a redlined
version, a version with commentary. I believe
there are a number of ways one can continue to make
that -- that document available for sale.
BY MR. HUDIS:
Q. Is one of your alternative theories that
once a standard is incorporated by reference, that
the government should pay for it?
MR. BECKER: Objection. May call for a
legal conclusion. Objection. Lacks foundation.
Assumes facts not in evidence. Objection.
Argumentative.
THE WITNESS: 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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development. And in many cases standards are
created, and there are other revenue streams that
go to the organization, such as the funding of
basic research.
So I don't think it's an either/or
proposition. I think there's already a lot of
money flowing.
BY MR. HUDIS:
Q. I don't believe your last answer,
Mr. Malamud, answered my question.
A. Okay. Could you restate the question?
Q. Sure. Do you have any views, whether they
are strong or not, whether once a standard is
incorporated by reference into a government
regulation, the government should pay for that?
MR. BECKER: All the same objections and
also asked and answered.
THE WITNESS: I believe I did answer your
question in the sense of the government is already
paying.
Now, my view is it proper for government
money to go to an SDO? In theory, yes.
MR. HUDIS: Just for the record Exhibit 24
bears production numbers AERA_APA_NCME 32075
through 32078.

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the United States has no copyright, and one is free
to read and speak the law. Without needing a
license, without needing permission.
What I can speculate on is different ways
that one might go about handling issues such as
revenue and whether the government should be paying
or not, and I frankly don't have strong views as to
whether or not the -- this scenario that I posited
here is the right solution.
MR. BECKER: I would advise the witness not
to speculate and only to give those answers that
the witness knows.
THE WITNESS: Okay.
BY MR. HUDIS:
Q. Do you have any views, whether they're
strong or not, whether once a standard is
incorporated by reference into a government
regulation, the government should pay for that?
MR. BECKER: Objection. May call for a
legal conclusion. Objection. Vague. Objection.
Lacks foundation and assumes facts not in evidence.
And argumentative.
THE WITNESS: So the government is already
paying in many different revenue streams for
standards. They pay for access. They help fund

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(PLAINTIFFS' EXHIBIT 25 WAS MARKED.)
BY MR. HUDIS:
Q. Mr. Malamud, I've placed in front of you a
document that's been marked as Exhibit 25, bearing
production numbers AERA_APA_NCME 31764 through
31768.
Do you recognize this document?
A. It appears to be an essay that I wrote for
boingboing. This appears to be a printout of that.
Q. 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.
Q. And what is boingboing?
A. Boingboing is a blog.
Q. And do you recall posting this blog on
March 19th, 2012, to boingboing?
A. I'm not sure of the exact date, but I did,
in fact, author a boingboing official guest
memorandum of law.
Q. Why did you call it a memorandum of law?
A. Because it was talking about an obscure
topic in a publication that reaches a very general
audience.
Q. Under the first heading Roman numeral I,

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May 12, 2015
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MR. BECKER: Objection. Vague.
Objection. To the extent that any of this
information has come from attorney-client
communications, I will instruct the witness not to
divulge any privileged information.
THE WITNESS: I'm aware that they are
updated. I'm not terribly clear on the exact
process that the organizations went through to do
that.
BY MR. HUDIS:
Q. Do you know who uses the standards?
MR. BECKER: Objection. Vague.
Again, to the extent that this answer
requires the divulging of any attorney-client
privileged communications, I'll instruct the
witness not to divulge that information.
Competence. Lacks foundation.
THE WITNESS: So I know some of the people
that use the standard. I know that the Department
of Education has incorporated by reference into its
regulations. So I am -- I know that the Department
of Education has people that use it.
I know a lot of state governments are
putting together tests that conform to the
standards.

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THE WITNESS: My sister read it in the
course of her doctoral course work.
BY MR. HUDIS:
Q. And what was your sister's doctoral course
work?
A. On, I want to state this properly. I
believe physical and rehabilitative therapy. A
subset of psychology.
Q. How did the standards first come to your
attention?
MR. BECKER: Objection. Vague. Objection.
Ambiguous.
THE WITNESS: I was looking at the
standards incorporated by reference under the Code
of Federal Regulations, and the standards at issue
were one of the ones that were specified.
BY MR. HUDIS:
Q. And what year was that?
A. Probably 2012. Early 2012.
Q. When did Public.Resource -A. Might have been earlier. Might have been
earlier. I'm not sure.
Q. Sometime in 20 -- in 2012?
A. Coming to my attention in the sense of
remembering it now, yes.

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I believe there are a number of other
agencies, I believe Office of Personnel Management,
I believe Department of Defense, a number of state
organizations, are all users of the standard
because they specify that it shall be used.
BY MR. HUDIS:
Q. Do you know of any non-governmental users
of the standards?
MR. BECKER: All the same objections.
Vague.
To the extent that there is any information
that the witness has learned from his attorneys, I
will instruct him not to divulge this privileged
information.
THE WITNESS: I know that the Educational
Testing Service, ETS and a number of organizations
that create tests, are users of the standard, and
the reason I know that is there's been a series of
procurements by government organizations that
require the use of the standard.
BY MR. HUDIS:
Q. Do you know of any other non-governmental
users of the standards?
MR. BECKER: All the same objections. Also
object for competence.

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Q. What, if anything, made you interested in
acquiring the standards?
A. It was -MR. BECKER: Objection. Vague.
THE WITNESS: -- incorporated by reference
into the Code of Federal Regulations.
BY MR. HUDIS:
Q. When did Public.Resource first make the
decision to post the standards to one of its
websites?
MR. BECKER: Objection. Vague. Objection.
Lacks foundation. Objection. May call for a legal
conclusion.
THE WITNESS: So it would have been
sometime after obtaining a copy of the standard and
examining it and satisfying myself that, in fact,
it was the document that was incorporated by
reference, and sometime between the procurement,
which I believe was in May 2012, and the actual
posting, which I believe was in July 2012.
BY MR. HUDIS:
Q. So how did Public.Resource come to the
decision to post the standards on one of its
websites?
MR. BECKER: Objection. Vague and

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Carl Malamud

May 12, 2015
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BY MR. HUDIS:
Q. Mr. Malamud, I show you a document that has
been marked as Exhibit 34, bearing production
numbers AERA_APA_NCME 31528 through 31738.
Do you recognize this document?
A. It appears to be a copy of the standards at
issue with the certificate of incorporation on the
top.
Q. All right. And is this the cover sheet
that you appended on top of the 1999 standards
posted on Public.Resource's website?
A. Yes, it appears to be.
Q. Who prepared this cover sheet?
A. I did.
Q. And who chose the language for the cover
sheet?
A. I did.
Q. What was your intention, Mr. Malamud, for
appending this cover sheet of Exhibit 34 on top of
the 1999 standards posted on Public.Resource's
website?
A. I wanted to be very clear that this was a
posting of a standard incorporated by reference
into the Code of Federal Regulations. I wanted to
place this document in context.

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Q. Did HTC Global participate in this process?
A. They did not.
Q. Did anyone else besides yourself
participate in this process?
A. It's just me.
Q. I'd like you to look in Exhibit 29,
interrogatory answer number 4 on page 6.
So consistent with your -- your prior
testimony, does this interrogatory answer number 4
in Exhibit 29 accurately identify all the persons
and entities who were involved in disassembling the
paper version of the 1999 standards, scanning them,
processing them and posting them to the Internet?
MR. BECKER: Objection to form.
THE WITNESS: Yes, it was me.
BY MR. HUDIS:
Q. I just want to go a little bit into depth
about quality control.
So what quality control procedures did you
use to ensure the quality of the textual comment -content of the 1999 standards that you posted to
the Internet?
MR. BECKER: Objection. Vague.
THE WITNESS: This is a scan of a document.
BY MR. HUDIS:

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Q. And what was your purpose on the cover
sheet of using the medallion that had the word
"Repeatedly Approved."
A. To signify that the executive director of
the Office of the Federal Register had explicitly
and deliberately approved this incorporation by
reference.
Q. We just went through the process that you
used. We asked you the question, did you digitize
or convert to a digital format the 1999 standards,
and we went through that process.
My question is, who participated in the
process of disassembling the paper version of the
1999 standards, scanning them and processing them,
as you described here in interrogatory answer
number 3 and posting them to the Internet?
MR. BECKER: Objection. Compound.
THE WITNESS: That was me.
BY MR. HUDIS:
Q. Did Point.B Studio participate in this
process?
A. No.
Q. Did Rebecca Malamud participate in this
process?
A. She did not.

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Q. Mm-hm.
A. It's a pixel-by-pixel replication of what
was on the printed page.
Q. I'll be more specific.
Did you check for missing or incorrectly
scanned pages?
A. I believe I did.
Q. Did you check for pages that may have had
blurred text?
A. I believe I did.
Q. Now, you say, "I believe I did." Do you
know for sure that you did?
A. My standard procedure is to do those
things. I don't know this specific document simply
because I don't recollect back to that period in
May 2012. So I can't testify under oath that I
did, in fact, do that. But that certainly is my
standard procedure.
Q. Mr. Malamud, what is search engine
optimization?
A. Search engine optimization is a technical
term of art that has to do with how documents that
are on a web server show up in search engine
results.
Q. Please continue.

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A. In particular with the PDF document, what
you want in a search engine result is rather than,
for example, a snippet of OCR, you want the actual
title of the document to show up in a description.
It's what Google would cause a snippet.
So by embedding metadata in the header of
the PDF file, the attempt is to make sure that that
document title shows up in the search engine
results so people know what that document is.
Q. So, Mr. Malamud, did you check the metadata
you added to the PDF file comprising the 1999
standards for search engine optimization?
A. Well, when I created the script that embeds
the metadata in the header, I had in mind search
engine optimization.
So assuming I did my job right, and
remember search engines change over time. So if
you did something in one period of time, that
doesn't necessarily mean that a search engine will
react the same way later on.
But assuming that I wrote that initial
script properly, then this document would have
shown up in a meaningful fashion in search engine
results.
Q. And your answer just now said, "assuming."

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did do that on a consistent basis. It's not part
of our normal workflow, no.
BY MR. HUDIS:
Q. Was the PDF file of the 1999 standards that
you created ever converted from PDF to any other
format before posting to the Internet?
MR. BECKER: Objection. Form.
THE WITNESS: I don't think so.
BY MR. HUDIS:
Q. So the 1999 standards that you scanned and
creed a PDF file, was it ever converted to JPEG?
MR. BECKER: Objection. Form.
THE WITNESS: I'm not sure what that means.
BY MR. HUDIS:
Q. Was it converted from PDF format to a JPEG
format?
MR. BECKER: Same objection.
THE WITNESS: I don't think that would make
any sense on a document like that. You'd end up
with, you know, a couple hundred JPEG files.
No. I certainly wouldn't have done that.
BY MR. HUDIS:
Q. Okay. Did you convert it to SBG format?
A. No. That wouldn't make any sense at all.
Q. And would you have any -- would you have

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You don't know for sure with respect to this
particular document?
A. I don't recollect looking at this document
in Google or Bing or other search engine results to
determine that fact.
Q. Did you check the quality of the optical
character recognition process for accuracy for the
1999 standards?
MR. BECKER: Objection. Form.
THE WITNESS: Hold on a second. I'd like
to double-check something.
OCR is inherently prone to certain errors.
And what I used was the best available OCR that I
had, which was in Adobe Acrobat Pro. But I did not
pull up the underlying text. The underlying OCR
text is used to search a file; not to read a file.
Does that answer your question?
BY MR. HUDIS:
Q. So in doing a quality check of the optical
character recognition process for accuracy, did you
attempt to pull up the underlying text after the
scan was completed?
A. No.
MR. BECKER: Objection. Form.
THE WITNESS: No. And I never said that I

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had any reason to convert the PDF file of the 1999
standards to a MathML format?
MR. BECKER: Objection. Form.
THE WITNESS: I don't -- well, first of
all, MathML is embedded in an HTML file.
And second of all, at least to the best of
my recollection, I don't think there's any
mathematical formulas in the standards at issue.
BY MR. HUDIS:
Q. So that brings me to my next question.
Was the PDF file that you created from the
1999 standards ever converted to HTML format?
MR. BECKER: Objection. Form.
THE WITNESS: No, we didn't do that.
BY MR. HUDIS:
Q. Was the PDF file of the 1999 standards that
you created ever converted from PDF to a format
making the standards accessible to the visually
impaired?
MR. BECKER: Objection. Form. Objection.
Competence; lacks foundation and assumes facts not
in evidence.
THE WITNESS: The OCR procedure does, in
fact, make the document accessible to the visually
impaired.

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1-800-FOR-DEPO

Carl Malamud

May 12, 2015
San Francisco, CA
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BY MR. HUDIS:
Q. In what way?
A. A screen reader is able to read the
underlying text, granted with potential OCR errors,
but the vast majority of the text is accessible to
those that are visually impaired.
Q. Are you familiar with the format,
refreshable Braille?
A. No, I'm not.
Q. Did you convert the PDF file of the 1999
standards that you made to refreshable Braille
format?
A. We don't do that. We convert to HTML.
Q. Did -- and you didn't convert -A. So no. No is the answer.
Q. All right. And you didn't convert the PDF
file to HTML either?
A. This particular standard, no, we did not.
Q. Okay. And did you convert the PDF file
that you created from the 1999 standards to large
print?
MR. BECKER: Objection. Form.
THE WITNESS: It is an unencumbered PDF,
and so a viewer can, in fact, magnify the text that
is there.

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accurately state when and where you posted the 1999
standards to the Internet?
A. It does.
Q. And what was the date that you posted the
standards to the Internet?
MR. BECKER: Objection. Form.
THE WITNESS: As our interrogatory says,
July 11, 2012 on Law.Resource.Org and ...
BY MR. HUDIS:
Q. All right. And -A. Yeah.
Q. And as you said, you posted the standards
to Law.Resource.Org, and you also posted the
standards to the Internet Archive; correct?
A. That is correct.
Q. Mr. Malamud, what is the name of the
Public.Resource web server to which you saved the
file containing the contents of the 1999 standards?
A. Law.Resource.Org.
Q. That's the name of the server?
A. Yes.
MR. BECKER: Please give me time to object.
MR. HUDIS: I'm sorry.
THE WITNESS: That was my fault.
MR. HUDIS: I don't want to be rude,

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So in that sense, large print, we did not
retype the documents into a large print edition.
BY MR. HUDIS:
Q. Mr. Malamud, do you have any materials in
your -- in Public.Resource's possession documenting
the process you went through of disassembling the
paper version of the 1999 standards, scanning them,
processing them and posting them to the Internet?
MR. BECKER: Objection. Compound.
THE WITNESS: No, there's no intermediate
process. That's a book and then it gets scanned.
THE REPORTER: Did you say "there's no
intermediate product"?
THE WITNESS: Intermediate process.
BY MR. HUDIS:
Q. Mr. Malamud, once you converted the 1999
standards from paper to the PDF format, what did
you do with the contents of the file?
A. I posted the file to Law.Resource.Org and
to the Internet Archive.
Q. Mr. Malamud, could you please return your
attention to Exhibit 29, interrogatory answer
number 2.
A. Okay.
Q. Does interrogatory answer number 2

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Counsel, seriously. Okay.
BY MR. HUDIS:
Q. Is the file containing the 1999 standards
still saved on that web server?
MR. BECKER: Objection. Vague and
ambiguous; assumes facts not in evidence.
THE WITNESS: It is not in the document
tree of the web server, no.
BY MR. HUDIS:
Q. Do you still have that file still saved
somewhere within Public.Resource's computer
systems?
A. Yes, I do.
Q. Where?
A. One copy on my desktop. One copy in the
not published directory. I don't know what the
exact name of it is. Someplace on our server, but
it's a private area that's not accessible to -- to
anybody but myself and our systems administrator.
Q. Mr. Malamud, does Public.Resource have any
logs from its web servers documenting the date on
which the 1999 standards were posted to
Public.Resource's website?
MR. BECKER: Objection. Vague and
ambiguous. Objection. Lacks foundation. And

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1-800-FOR-DEPO

Carl Malamud

May 12, 2015
San Francisco, CA
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assumes facts not in evidence.
THE WITNESS: There's no logs, but there
was a file creation date on the file.
BY MR. HUDIS:
Q. Has any documentation noting the file
creation date ever been produced to us?
A. I don't know.
MR. HUDIS: Counsel, if that document has
not been provided to us, it should be provided to
us now.
THE WITNESS: So the file creation date was
the date that the standard was posted. And when at
your request we removed that standard and replaced
it with a stub, that's going to be the new creation
date. So I don't believe there's going to be a
record.
BY MR. HUDIS:
Q. What about the old creation date when the
original standards file was -- was posted to your
web server?
A. I moved it to a different area. I mean,
you can make the request and we'll go look and see
if that's there, but it's -Q. Thank you, Mr. Malamud, I appreciate that.
Did you post the entirety of the 1999

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in evidence.
THE WITNESS: It's the collection I created
to hold the standards incorporated by reference.
BY MR. HUDIS:
Q. All right. So you created the Codes of the
World collection on Internet Archive's website?
A. I did.
Q. Mr. Malamud, I show you what was previously
marked at Internet Archive's deposition in this
case as Butler Exhibit 6.
Do you see that?
A. I do. Let me correct a misstatement. It
wasn't called Codes of the World. It was called
Global Public Safety Codes is the name of the
collection.
Q. And what types of materials did you post to
the Global Public Safety Codes collection on
Internet Archive?
A. Standards incorporated by reference in the
law.
Q. Do you recognize Butler Exhibit 6?
A. This is a document you created?
Q. It's a document we printed from the
Internet Archive.
A. This appears to be a series of screen dumps

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standards to Public.Resource's website?
A. Yes.
Q. Mr. Malamud, as it pertains to the Internet
Archive, what is a collection?
MR. BECKER: Objection. Asked and
answered.
THE WITNESS: A collection is a set of
items that often have a common theme.
BY MR. HUDIS:
Q. And you said you posted the 1999 standards
to Internet Archive's website; correct?
A. That is correct.
Q. And did you post the entirety of the 1999
standards to Internet Archive's website?
A. I did.
Q. Under which collection at the Internet
Archive did you post the 1999 standards?
MR. BECKER: Objection. Form.
THE WITNESS: The current name of that
collection is Codes of the World.
BY MR. HUDIS:
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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from that item in which you are paging through the
standards at issue, is what this appears to be.
Q. That's exactly correct. And you just saved
me about five minutes of explanation.
A. Oh, sorry about that.
Q. That's fine. Thank you very much,
Mr. Malamud.
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?
MR. BECKER: Objection. Vague and
ambiguous; confusing.
THE WITNESS: I have heard it called book
reader, but I don't know the details of what the
code is or how it's embedded or anything of that
sort.
BY MR. HUDIS:
Q. So you've heard it referred to as a book
reader application?
A. Yes.
Q. All right. Have you ever heard of a DjVu
Reader?
A. Yes, I have.
Q. And what -- what is its function, to the
best of your knowledge?

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Alderson Reporting Company
1-800-FOR-DEPO

Carl Malamud

May 12, 2015
San Francisco, CA
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in your e-mail to Alexis Rossi?
A. Because that's the proper address to inform
the Internet Archive about matters pertaining to a
collection.
Q. And what do you mean by matters relating to
a collection?
A. If you have technical problems with your
collection or other issues or problems, that would
be the address that you would write to.
Q. And at the end of this e-mail there's a
URL. Do you see that?
A. I do.
Q. And it ends with AERA.standards.1999?
A. I see that.
Q. All right. Is this the URL where you
posted the 1999 standards on Internet Archive's
website?
A. It is.
Q. Mr. Malamud, if Public.Resource succeeds in
this lawsuit brought by AERA and its co-plaintiffs,
will Public.Resource repost the 1999 standards on
its website?
MR. BRIDGES: Objection. Hypothetical.
THE WITNESS: I guess I'd have to read the
decision and make my determination based on that.

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Q. How would you make that determination?
MR. BRIDGES: Objection. May call for
speculation; vague and ambiguous; argumentative.
THE WITNESS: I would want to look at the
specific nature of the incorporation by reference.
I would want to look at that specific standard, and
I'd want to make a determination if that was an
area that I wanted to continue to invest resources
in. So I don't know. It would depend on the
specifics.
BY MR. HUDIS:
Q. If you looked at the 2014 standards and
made a determination that it was an area in which
you wanted to continue to invest resources, if
Public.Resource is successful in this litigation
and the 2014 standards are incorporated by
reference by a state or federal agency, would you
post the 2014 standards to the Internet?
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
and explicit incorporation by reference in what I
felt was a substantive rule, right, not an offhand

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BY MR. HUDIS:
Q. Well, if you're totally successful?
MR. BRIDGES: Again, hypothetical.
THE WITNESS: Our goal is to post all
standards incorporated by reference into the Code
of Federal Regulations. So yes.
BY MR. HUDIS:
Q. If Public.Resource is successful in this
litigation, how easy or difficult would it be for
you to repost the 1999 standards on
Public.Resource's website?
MR. BRIDGES: Hypothetical; lacks
foundation; assumes facts not in evidence; vague
and ambiguous; compound.
THE WITNESS: It wouldn't be difficult.
BY MR. HUDIS:
Q. If the next version of the Standards on
Educational and Psychological Testing, the 2014
version, is ever incorporated by reference by a
state or federal agency, will you post that version
of the standards to the Internet as well?
MR. BRIDGES: Objection. Hypothetical;
compound; vague and ambiguous.
THE WITNESS: I don't know.
BY MR. HUDIS:

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thing, then I would certainly consider strongly
posting that document.
BY MR. HUDIS:
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.
Even though the 1999 standards have been
removed from public view on Public.Resource's
website, is the digital file containing the text of
the 1999 standards still stored somewhere on
Public.Resource's computer systems?
MR. BRIDGES: Objection. Vague and
ambiguous.
THE WITNESS: Yes.
BY MR. HUDIS:
Q. Even though the 1999 standards were removed
from public view on Internet Archive's website, to
the best of your knowledge is the digital file
containing the text of the 1999 standards still
stored somewhere on Internet Archive's computer
systems?

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Alderson Reporting Company
1-800-FOR-DEPO

Carl Malamud

May 12, 2015
San Francisco, CA
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case deserves the Court's fullest attention without
a rush to reach an interim ruling in the absence of
a full record."
What did you mean by that?
MR. BRIDGES: Objection. Lacks foundation;
vague and ambiguous.
THE WITNESS: As I state in the next
paragraph, "In order to focus this case on
developing an appropriate record for a decision on
the merits, Public.Resource.Org has voluntarily
removed the document in question from the websites
under its control."
And as you had stated in a previous
sentence, this was so it was done without a rush to
reach an interim ruling in the absence of a full
record.
BY MR. HUDIS:
Q. I'd like to now direct your attention,
Mr. Malamud, to the fourth paragraph of Exhibit 43.
And it says, "Until the conclusion at trial on the
merits in this case, Public.Resource.Org will keep
the document in question off of the websites under
its control and will not disseminate the document
in whole or in part, including any revisions, and
will maintain the status on the Internet Archive to

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vague and ambiguous.
THE WITNESS: Yes.
BY MR. HUDIS:
Q. Since the time of this memo of Exhibit 43,
have the 1999 standards been reposted to a website
under Public.Resource's control?
MR. BRIDGES: Objection. Vague and
ambiguous; argumentative.
THE WITNESS: Yes.
BY MR. HUDIS:
Q. Why?
A. There was a technical malfunction in one of
our servers and by mistake a copy of the full
standard was posted in place of the stub.
Q. And when was that?
A. That was in January 2015.
Q. Mr. Malamud, during the two-year period
that the 1999 standards were posted to
Public.Resource's website, was a record kept of how
many Internet users viewed or accessed the
standards from that website location?
MR. BRIDGES: Objection. Utterly lacks
foundation; argumentative; vague and ambiguous,
and -- yeah. And competence.
THE WITNESS: Our server log's document

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prevent any public access to the document from the
archive's websites." Do you see that?
MR. BRIDGES: Objection. The document
speaks for itself.
THE WITNESS: I do.
BY MR. HUDIS:
Q. What did you mean by that sentence?
MR. BRIDGES: Objection. The document
speaks for itself; lacks foundation; vague and
ambiguous; argumentative.
THE WITNESS: I think the sentence is very
clear; right?
BY MR. HUDIS:
Q. What did you mean?
A. I meant "Until the conclusion of trial on
the merits of this case, Public.Resource.Org will
keep the document in question off of the websites
under its control and will not disseminate the
document in whole or in part, including any
revisions, and will maintain the status on the
Internet Archive to prevent any public access to
the document from the archive's websites."
Q. And this memo was written by you on June
12th, 2014?
MR. BRIDGES: Objection. Lacks foundation;

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retention policy was a two-week window until
litigation commenced in the ASTM case when we began
keeping the logs permanently. And so we -- we did
not keep a record prior to that.
BY MR. HUDIS:
Q. Do you know the earliest date on which you
kept such logs?
MR. BRIDGES: Objection. Again, lacks
foundation; argumentative; vague and ambiguous and
competence.
THE WITNESS: So again, the document
retention policy was a two-week window on the logs,
and in September -- August or September of 2013 we
changed that policy because litigation had
commenced. And so at that point we began keeping
the logs permanently.
BY MR. HUDIS:
Q. And do you still have those logs today?
MR. BRIDGES: Same objections. I think I
missed a compound objection to the underlying
question.
THE WITNESS: Yes.
BY MR. HUDIS:
Q. In what form are the logs kept?
MR. BRIDGES: Same objections.

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Alderson Reporting Company
1-800-FOR-DEPO

Carl Malamud

May 12, 2015
San Francisco, CA
Page 374

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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 ____________,
2015, and executed the above certificate in my
presence.
________________________
NOTARY PUBLIC IN AND FOR
________________________
County Name
MY COMMISSION EXPIRES:

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REPORTER'S CERTIFICATE
The undersigned Certified Shorthand Reporter
licensed in the State of California does hereby
certify:
I am authorized to administer oaths or
affirmations pursuant to Code of Civil Procedure,
Section 2093(b), and prior to being examined, the
witness was duly administered an oath by me.
I am not a relative or employee or attorney or
counsel of any of the parties, nor am I a relative or
employee of such attorney or counsel, nor am I
financially interested in the outcome of this action.
I am the deposition officer who
stenographically recorded the testimony in the
foregoing deposition, and the foregoing transcript is a
true record of the testimony given by the witness.
Before completion of the deposition, review of
the transcript [X] was [ ] was not requested. If
requested, any changes made by the deponent (and
provided to the reporter) during the period allowed are
appended hereto.
In witness whereof, I have subscribed my name
this ____ day of __________, 2015.
_______________________________
DIANE S. MARTIN, CSR No. 6464

95 (Pages 374 to 375)

Alderson Reporting Company
1-800-FOR-DEPO