Facebook, Inc. v. Phoenix Media/Communications Group, Inc. et al

Filing 26

DECLARATION re 25 Memorandum in Opposition to Motion to Dismiss by Facebook, Inc.. (Attachments: # 1 Exhibit A to Chen Declaration, # 2 Exhibit B to Chen Declaration, # 3 Exhibit C to Chen Declaration, # 4 Exhibit D to Chen Declaration, # 5 Exhibit E to Chen Declaration, # 6 Exhibit F to Chen Declaration, # 7 Exhibit G to Chen Declaration, # 8 Exhibit H to Chen Declaration, # 9 Exhibit I to Chen Declaration, # 10 Exhibit J to Chen Declaration, # 11 Exhibit K to Chen Declaration, # 12 Exhibit L to Chen Declaration, # 13 Exhibit M to Chen Declaration, # 14 Exhibit N to Chen Declaration, # 15 Exhibit O to Chen Declaration, # 16 Exhibit P to Chen Declaration, # 17 Exhibit Q to Chen Declaration, # 18 Exhibit R to Chen Declaration, # 19 Exhibit S to Chen Declaration, # 20 Exhibit T to Chen Declaration, # 21 Exhibit U to Chen Declaration, # 22 Exhibit V to Chen Declaration, # 23 Exhibit W to Chen Declaration, # 24 Exhibit X to Chen Declaration, # 25 Exhibit Y to Chen Declaration, # 26 Exhibit Z to Chen Declaration)(Chen, Reuben)

Facebook, Inc. v. Phoenix Media/Communications Group, Inc. et al

Doc. 26

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS FACEBOOK, INC, Plaint iff, v. PHOENIX MEDIA/COMMUNICATIONS GROUP, INC., PEOPLE2PEOPLE GROUP, INC., TELE-PUBLISHING, INC., AND FNX BROADCASTING LLC, Defendants. JURY TRIAL DEMANDED C.A. No. 1:10-cv-11917-DPW

DECLARATION OF REUBEN H. CHEN IN SUPPORT OF PLAINTIFF FACEBOOK, INC.'S OPPOSITION TO TPI'S MOTION TO DISMISS I, Reuben H. Chen, declare as follows: I am an attorney at the law firm of Cooley LLP. I represent the Plaintiff Facebook, Inc. ("Facebook") in the above captioned matter and have been admitted pro hac vice to this Court. I make this declaration in support of Facebook's Opposition to Defendant Tele-Publishing Inc.'s ("TPI") Motion to Dismiss. 1. Many of the websites that Facebook investigated before filing suit against TPI

have since been shut down, including, for example, the accused www.people2people.com website, and the TPI/P2P websites www.people2peoplegroup.com and www.tpigroup.com. 2. Attached hereto as Exhibit A are true and correct copies of the "Contact Info"

and "Related Links" web pages located at http://www.alexa.com/siteinfo/people2people.com#. 3. Attached hereto as Exhibit B is a true and correct copy of the web page located at

http://www.answers.com/topic/phoenix-media-communications-group. 4. Attached hereto as Exhibit C is a true and correct copy of the web page located at

http://en.wikipedia.org/wiki/Phoenix_Media/Communications_Group. 5. Attached hereto as Exhibit D is a true and correct copy of the domain history of

Dockets.Justia.com

people2people.com, indicating that as of January 25, 2007 TPI was the registrant of the people2people.com domain. 6. Attached hereto as Exhibit E is a true and correct copy of the information on the

PTO website for the trademark "People2People," indicating that TPI is the owner of record. 7. Attached hereto as Exhibit F is a true and correct copy of the web page located at

http://thephoenix.com/about. 8. Attached hereto as Exhibit G are true and correct copies of the web pages on the

Internet Archive indicating the dates on which there is archived information for the URL http://www.people2people.co.uk.com (at

http://web.archive.org/web/*/http://www.people2people.co.uk/corporate/history.asp) and a copy of the archived tpigroup.com web page reached via the May 2, 2008 link (at http://web.archive.org/web/20080502101915/http://www.people2people.co.uk/corporate/history. asp). 9. Attached hereto as Exhibit H are true and correct copies of the web pages on the

Internet Archive indicating the dates on which there is archived information for the URL http://www.people2people.com http://web.archive.org/web/*/http://www.people2people.com), a copy of the (at archived link (at has a at

http://www.people2people.com web page reached via the July 13, 2008 http://web.archive.org/web/20080713133755/http://www.people2people.com/) "Sign Up Now!" button that links to a registration page which

located

http://web.archive.org/web/20080611134848/www.people2people.com/default.asp?page=registe r&connect=pon, which is also included in the exhibit. 10. Attached hereto as Exhibit I are true and correct copies of the web pages on the

Internet Archive indicating the dates on which there is archived information for the URL http://www.people2people.com http://web.archive.org/web/*/http://www.people2people.com), a copy of the (at archived link (at

http://www.people2people.com web page reached via the July 27, 2008

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http://web.archive.org/web/20080727033350rn_2/www.people2people.co m/welco me/)

which

has a "Sign Up Now!" link that links to a registration page bearing the People2People logo located http://web.archive.org/web/20080727164006/people2people.loveaccess.com/secure/signup1.htm, which is also included in the exhibit. 11. Attached hereto as Exhibit J are true and correct copies of the web pages on the at

Internet Archive indicating the dates on which there is archived information for the URL http://www.people2people.com http://web.archive.org/web/*/http://www.people2people.com), a copy of the (at archived

http://www.people2people.com web page reached via the January 1, 2007 link (at http://web.archive.org/web/20070101212518/http://www.people2people.com/) "Sign Up Now!" button that links to a registration page which has a at

located

http://web.archive.org/web/20070103143940/www.people2people.com/default.asp?page=registe r&connect=pon, which is also included in the exhibit. 12. Attached hereto as Exhibit K is a true and correct copy of the web page located at

http://www.domaintools.com/historic-thumbnails/people2people.com and copies of enlarged versions of the thumbnail images of the people2peole.com website from April 25, 2009, August 9, 2008, and December 25, 2007. 13. Attached hereto as Exhibit L are true and correct copies of the web pages on the

Internet Archive indicating the dates on which there is archived information for the URL http://www.people2people.com/affiliate/whyus.asp (at

http://web.archive.org/web/*/http://www.people2people.com/affiliate/whyus.asp) and a copy of the August archived people2people.com 18, web 2007 page reached link via the (at

http://web.archive.org/web/20070818130329/http://www.people2people.com/affiliate/whyus.asp ). 14. Attached hereto as Exhibit M are true and correct copies of the web pages on the

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Internet Archive indicating the dates on which there is archived information for the URL http://www.people2people.com/affiliate/whyus_p2pgroup.asp, http://web.archive.org/web/*/www.people2people.com/affiliate/whyus_p2pgroup.asp) and (at a

copy of the archived http://www.people2people.com/affiliate/whyus_p2pgroup.asp web page reached via the April 16, 2007 link (at

http://web.archive.org/web/20070416095549/http:/www.people2people.com/affiliate/whyus_p2p group.asp). 15. Attached hereto as Exhibit N are true and correct copies of the "Contact Info"

and "Related Links" web pages located at http://www.alexa.com/siteinfo/tpigroup.com. 16. Attached hereto as Exhibit O is a true and correct copy of the web page located at

http://www.alexa.com/search?q=people2peoplegroup.com&r=site_screener&p=bigtop. 17. Attached hereto as Exhibit P are true and correct copies of screen captures for

what happens when one enters the URL http://www.tpigroup.com into a web browser, indicating that the browser is automatically redirected to the URL http://www.people2peoplegroup.com, which is now a non-functioning URL. 18. Attached hereto as Exhibit Q are true and correct copies of the web pages on the

Internet Archive indicating the dates on which there is archived information for the URL http://www.tpigroup.com, (at http://web.archive.org/web/*/http://www.tpigroup.com) and a copy of the archived http://www.tpigrpoup.com web page reached via the February 7, 2007 link (at http://web.archive.org/web/20070207122723/http://www.tpigroup.com/) and the web page reached through the "Click here to view existing site" link on that page which redirects to a web page titled "People2People Group The Relationship Experts" (at

http://web.archive.org/web/20070209023506/www.tpigroup.com/indexold.html). 19. Attached hereto as Exhibit R is a true and correct copy of the web page located at

http://web.archive.org/web/20041209005456/www.tpigroup.com/p2pweb.html. 20. Attached hereto as Exhibit S is a true and correct copy of the web page located at

http://thephoenix.com/BLOGS/mediakit/pages/p2p-contact-us.aspx.

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21.

Attached hereto as Exhibit T is a true and correct copy of the web page located at

http://graphics.kurtmalec.com/tpi.html. 22. Attached hereto as Exhibit U is a true and correct copy of the web page located at

http://boston.bizjournals.com/boston/stories/2009/10/05/daily50.html. 23. Attached hereto as Exhibit V is a true and correct copy of the web page located at

http://posting.altweeklies.com/aan/people-2-people-group-and-matchcom-agree-topartner/Article?o id=117378. 24. Attached hereto as Exhibit W is a true and correct copy of the web page located

at http://posting.altweeklies.com/aan/worcester-phoenix-closes-doors/Article?oid=1149. 25. Attached hereto as Exhibit X is a true and correct copy of the web page located at

http://www.bizjournals.com/sacramento/stories/2009/10/05/daily70.html. 26. Attached hereto as Exhibit Y is a true and correct copy of the web page located at

http://www.thefreelibrary.com/Mobile+Technologies+and+Web+Integration+Drive+Consolidati on+in...-a081395539. 27. Attached hereto as Exhibit Z are true and correct copies of the corporate

registration information provided by the Secretary of the State of Massachusetts for TPI, P2P, and PMC. 28. Attached hereto as Exhibit AA is a true and correct copy of the web page located

at http://posting.altweeklies.com/aan/tpi-sues-competing-personals-ad-business-alleging-patentinfringement/Art icle?o id=13. 29. at Attached hereto as Exhibit BB is a true and correct copy of the web page located http://posting.altweeklies.com/aan/executive-reorganization-at-phoenix-

mediaco mmunicat ions-group/Article?o id=168069. 30. Attached hereto as Exhibit CC is a true and correct copy of the corporate

registration information provided by the Secretary of the State of Massachusetts for PMCG Management Company LLC. 31. Attached hereto as Exhibit DD is a true and correct copy of a PowerPoint that

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contains a presentation entitled "People2People: Introducing the next generation of newspaper Personals," previously downloaded from http://people2people.com/corp/2009.ppt, which is now a non-functioning web page. 32. at Attached hereto as Exhibit EE is a true and correct copy of the web page located http://www.washingtonpost.com/wp-

dyn/content/artsandliving/adviceandrelat ionships/index.html and images related to the "try it" link on the Washington Post's web page that links to the URL

www.people2people.com/?connect=washpost, which is now a non-functioning URL. 33. Attached hereto as Exhibit FF are true and correct copies of the web pages on the

Internet Archive indicating the dates on which there is archived information for the URL http://www.people2people.com/?connect=washpost, (at

http://web.archive.org/web/*/http://www.people2people.com/?connect=washpost) and a copy of the archived http://www.people2people.co m/?connect=washpost web page reached via the May 28, 2008 link (at

http://web.archive.org/web/20080528234805/http://www.people2people.com/?connect=washpos t). 34. Attached hereto as Exhibit GG are true and correct copies of the web pages on

the Internet Archive indicating the dates on which there is archived information for the URL http://www.people2people.com/?connect=eastbay, (at

http://web.archive.org/web/*/http://www.people2people.com/?connect=eastbay) and a copy of the archived http://www.people2people.com/?connect=eastbay web page reached via the February 5, 2005 link (at

http://web.archive.org/web/20050205011713/http://www.people2people.com/?connect=eastbay). 35. Attached hereto as Exhibit HH are true and correct copies of the web pages on

the Internet Archive indicating the dates on which there is archived information for the URL http://sloconnections.com (at http://web.archive.org/web/*/http://www.sloconnections.com) and a copy of the archived http:/www.sloconnections.com web page reached via the June 8, 2007

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link (at http://web.archive.org/web/20070608153213/http://www.sloconnections.com/). The web page reached at the June 8, 2007 link has links to "search ads," "place an ad," and "internet personals." True and correct copies of screenshots demonstrating the URL's linked through these options are provided in the exhibit and demonstrate the following: (1) the "search ads" button links to a tpigroup.com web page; (2) the "place an ad" button links to a tpiconnect.com web page; (3) the "internet personals" button links to a people2people.com web page. 36. Attached hereto as Exhibit II are true and correct copies of the web page located

at http://www.sfbg.com/index.php and a screen capture of the "Personals" link that links to http://www.people2people.com/welcome, and a screen capture indicating that that link is no longer functional. 37. at Attached hereto as Exhibit JJ is a true and correct copy of the web page located that provides a link to "Return to

http://people2people.loveaccess.com/htm

People2People.com." 38. Attached hereto as Exhibit KK are true and correct copies of the web pages on

the Internet Archive indicating the dates on which there is archived information for the URL http://people2people.loveaccess.com (at

http://web.archive.org/web/*/http://people2people.loveaccess.com) and a copy of the archived web page reached via the July 25, 2008 link and (at a

http://web.archive.org/web/20080725042229/http://people2people.loveaccess.com/)

"negative" copy of that same page to facilitate view of the statement "Copyright People2People.com All Rights Reserved." 39. at http://web.archive.org/web/20101219220803/http://people2people.loveaccess.com/legal.htm?bri ef=1 that states: "COMPLAINTS. To resolve a complaint regarding the Service or the Site, you should contact People2People.com Customer Support at [e-mail]." 40. Attached hereto as Exhibit MM are true and correct copies of the Attached hereto as Exhibit LL is a true and correct copy of the web page located

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people2people.loveaccess.com "Frequently Asked Questions" web page from the Internet Archive located at

http://web.archive.org/web/20101219221951/http://people2people.loveaccess.com/faq.htm?catid =2, which provides a link to "Partnership Opportunities" that

(http://web.archive.org/web/20101219221951/http://www.people2peoplegroup.com/)

redirects to a www.people2peoplegroup.com URL, as demonstrated by the true and correct copy of the linked web page located at

http://web.archive.org/web/20050210030438/www.people2peoplegroup.com/, which is also included. 41. Attached hereto as Exhibit NN is a true and correct copy of the web page located

at http://indyweek.loveaccess.com/. 42. Attached hereto as Exhibit OO is a true and correct copy of the web page located

at http://indyweek.loveaccess.com/legal.htm?brief=1. 43. Attached hereto as Exhibit PP are true and correct copies of the web pages on the

Internet Archive indicating the dates on which there is archived information for the URL http://www.people2people.com/affiliate/welcome.asp, (at

http://web.archive.org/web/*/http://www.people2people.com/affiliate/welcome.asp) and a copy of the archived http://www.people2people.com/affiliate/welcome.asp web page reached via the May 7, 2006 link (at

http://web.archive.org/web/20060507231326/http://www.people2people.com/affiliate/welcome.a sp). 44. Attached hereto as Exhibit QQ is a true and correct copy of the web page located

at http://www.loveaccess.com/affiliates-index.htm. /// /// /// ///

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45.

Attached hereto as Exhibit RR is a true and correct copy of the web page located

at http://people2people.loveaccess.com/. I declare under the penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 22nd day of December, 2010 at Palo Alto, California. /s/ Reuben H. Chen Reuben H. Chen

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CERTIFICATE OF SERVICE I, Reuben H. Chen, hereby certify that pursuant to Local Rule 5.4(C), this document has been filed through the ECF system and will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF). For those parties indicated as non-registered participants, if any, a paper copy will be sent by facsimile and/or U.S. First Class Mail on December 22, 2010. /s/ Reuben H. Chen Reuben H. Chen
906415 v1/HN

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